I know that when a candidate is weak in his own party like McCain, or faces a powerful minority like Obama did with Clinton, platforms often are at least as much a reflection of the party activists than of the candidates’ own views, but even so it’s pretty telling.

Whoever said, the case Air Force Reserve Colonel Steve Kleinman proves its truth. Col. Kleinman is one of the heroes of Jane Mayer’s book, “The Dark Side.”

Kleinman was sent to Iraq in the fall of 2003 to offer advice on interrogation, and was horrified to find that military-CIA task forces were abusing prisoners in ways that had been reverse engineered from a torture-resistance training program.

He tried to stop it. As Mayer wrote: “For bucking these direct orders from the top rungs of the Pentagon to inflict illegal levels of cruelty on the prisoners, Kleinman soon found himself ‘the least popular officer in the whole country. I got into serious arguments with many people. They wanted to do these things. They were itching to. It was about revenge, not interrogation. And they thought I was coddling terrorists.’”

In a new article at NiemanWatchdog.org, Kleinman asks why the president’s legal advisers were so intent on rationalizing the violation of longstanding law in order to adopt an approach –- coercion — that experienced interrogation practitioners agree is not just ineffective, but counterproductive.

Whatever was going on, it doesn’t seem to have been about actually getting the truth out of people.

Setting aside the moral arguments against torture, the considerable time and energy spent in establishing a legal justification for harsher methods, such as the so-called “enhanced interrogation techniques,” would have seemed a more reasonable course of action if substantial evidence existed that these methods were objectively of superior operational effectiveness than more traditional approaches and/or had proven necessary in the context of a new dimension of conflict.

The CIA, the agency exclusively authorized to operate under this separate set of standards, did not — and could not — offer objective arguments that would justify such a conclusion.

Of course, this is the administration that doesn’t ever let facts get in its way…

There ought be be a medal for this sort of princpled powerful advocacy in service to the nation. Please read it. I’ve reprinted the full text below to make it easier. (If you care — I’m not sure how relevant it is under the circumstances — you can learn more about the facts of the Mohamed Jawad case from FreeDetainees.org.)

Update: Here’s some background on Major and Professor David Frakt.

On Feb 7, 2002, President Bush issued an order. The order stated, in pertinent part “I accept the legal conclusion of the Department of Justice and determine that Common Article 3 of Geneva does not apply to either al Qaeda or Taliban detainees.”

“I determine that the Taliban detainees do not qualify as prisoners of war…al Qaeda detainees also do not qualify as prisoners of war.”

“Our values as a nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment… As a matter of policy the United States Armed Forces shall continue to treat detainees humanely, and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.”

With these fateful and ill-advised words, President Bush, our Commander-in-Chief, perhaps unwittingly, perhaps not, started the U.S. down a slippery slope, a path that quickly descended, stopping briefly in the dark, Machiavellian world of “the ends justify the means,” before plummeting further into the bleak underworld of barbarism and cruelty, of “anything goes,” of torture. It was a path that led inexorably to the events that brings us here today, the pointless and sadistic treatment of Mohammad Jawad, a suicidal teenager.

President Bush’s words were important, and deserve special attention. For those of us in the military who have faithfully attended our annual Law of Armed Conflict training, or in my case, have given the training many times, the Geneva Conventions and humane treatment were synonymous, they were one and the same. The Geneva Conventions represented the baseline, they embodied the determination of the world to make war a more humane enterprise, to prevent a descent into wholesale barbarity, as had occurred during the Second World War. But now we were being told that humane meant something else, something less, than the Geneva Conventions. And we were being told that we could act inconsistently with the Geneva Conventions, when military necessity demanded it. Those of us who were familiar with the Geneva Conventions, whose job it was to know them, were puzzled and deeply troubled by the President’s order and had serious forebodings about the implications of such a decision. We understood that there were no gaps in Geneva, there were was no one who fell outside their protection, that Common Article 3 applied to everyone.

But the civilian political appointees of this administration intentionally cut out the real experts on the law of armed conflict, the uniformed military lawyers, the JAGs, were out of the loop, for fear that their devotion to the Geneva Conventions might pose an obstacle to their intended course of action. The State Department, led by Colin Powell, tried to raise a red flag, but to no avail. Instead, the administration chose to rely on the infamous torture memos by John Yoo, Robert Delahunty and Jay Bybee. These secret memos attempted to redefine torture for the purpose of providing legal cover for administration officials who approved the use of patently unlawful tactics. These legal opinions, now disgraced, disavowed, and relegated to the scrapheap of history where they belong, laid the groundwork for the wholesale and systematic abuse of detainees which ultimately ensnared my client, Mohammad Jawad.

I’m sure that all of these people, the President included, thought they were doing what was best. But what sometimes appears to be in the interests of America at first glance, upon further reflection reveals itself not to be. Interning Japanese-Americans during World War II perhaps seemed like a good idea at the time, but in hindsight we can see that it was a terrible injustice, inconsistent with American ideals and utterly unconstitutional. It is a shameful episode in our history, a xenophobic overreaction. The conscious, deliberate decision to abandon the Geneva Conventions and the entire fiasco that is Guantanamo will undoubtedly be viewed by historians as an even more disgraceful chapter in our history.

The Feb 7, 2002, order of President Bush invited the rule of law to be circumvented. Even though the President paid lip service to humane treatment, by stating that detainees were not legally entitled to be treated humanely, and by his qualification of “to the extent appropriate and consistent with military necessity” the implication was clear — it was only policy to be humane, not a legal requirement, and there would be no legal consequences to those who didn’t treat detainees humanely, if there was some military justification for it. Of course, during a “global war,” it is possible to rationalize almost anything under the general rubric of military necessity. After all, if there is even a slight possibility that some military advantage might be gained by some course of action, don’t we owe it to our troops to do it? If there is even a minute chance that some sliver of intelligence might be gleaned about an impending terrorist attack, don’t we owe it to the American people to do everything in our power to extract it? The obvious answer to most of those working in detainee operations at Guantanamo and elsewhere was “Yes.”

Adding to the pervasive atmosphere of lawlessness in the early days of Guantanamo was the administration’s assertion that the detainees could be held indefinitely without charge, without access to counsel, without any recourse to challenge their detention. The administration asserted that the detainees were beyond the reach of any federal court and were not eligible for habeas corpus, a hallowed right guaranteed by the founding fathers of this great country. In effect, the administration created a legal black hole at Guantanamo, a policy universally decried by our even our staunchest allies in the war on terror, but steadfastly defended by the administration.

If there was any doubt that the President intended unlawful tactics to be used, all doubt was erased when Secretary of Defense Rumsfeld authorized, on Dec 2, 2002, numerous extra-legal special interrogation techniques. These techniques and how they were developed and utilized were the subject of hearings before the Senate Armed Service Committee yesterday and are described in detail in the book Torture Team, which I have attached to this motion. I’m sure Phillipe Sands would be honored to have his book included in the record of this commission.

Eventually, cooler and wiser heads started to inject some rationality into the treatment of the Guantanamo detainees. Unsung heroes like Alberto Mora, Navy General Counsel, and Admiral Jane Dalton, and the service TJAGs Gen Rives, Gen Romig, fought vigorously for the restoration of Geneva. But it ultimately took the intervention of the Supreme Court to restore the rule of law to Guantanamo. The Court intervened and made it clear that the Geneva Conventions did apply to detainees at Guantanamo, and that they did have the right to habeas corpus, a right that Congress has twice, unsuccessfully, attempted to take away. This fight to restore the rule of law took time, years in fact, in which the detainees of Guantanamo continued to suffer indignity and inhumanity. It was not until July 2006 when the Deputy Secretary of Defense Gordon England issued a memorandum stating that “common Article 3 of the Geneva Convention applies as a matter of law“ to the treatment of detainees held by the Department of Defense, and that the “humane treatment [is] the overarching requirement of Common Article 3.” Unfortunately, by then, the damage had already been done, both to the detainees and to the reputation of the United States as a law-abiding country.

America is a nation founded on a reverence for the rule of law. We should never forget that when we take an oath to enlist or be commissioned as an officer in the United States Armed Forces, we do not swear to defend the United States, we swear “to support and defend the Constitution of the United States against all enemies, foreign and domestic.” The Oath of Office for the President contains similar words: “I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” Tragically, under the undeniably heavy pressure to defend Americans from terrorist attack, some of our military and civilian leaders lost sight of their obligation to defend the Constitution as well.

Under the Constitution all men are created equal, and all are entitled to be treated with dignity. No one is “undeserving” of humane treatment. It is an unmistakable lesson of history that when one group of people starts to see another group of people as “other” or as “different,” as “undeserving” as “inferior,” ill-treatment inevitably follows. In the Global War on Terror generally and in the detention camps of Guantanamo especially, the detainees were seen as “terrorists,” as “the worst of the worst” something less than human, and were treated accordingly. After six and a half years, we now know the truth about the detainees at Guantanamo: some of them are terrorists, some of them are foot soldiers, and some of them were just innocent people, caught in the wrong place at the wrong time. But the detainees at Guantanamo have one thing in common — with each other, and with us — they are all human beings, and they are all worthy of humane treatment. We should also never forget that no one in Guantanamo has been convicted of a single crime and that even in these deeply flawed military commissions, they are entitled to a presumption of innocence.

Throughout the Global War on Terror we have heard repeatedly from our military and civilian leaders that this was a new kind of war, a war that requires new methods, new ideas, “thinking outside the box.” So that is what the highly creative and motivated people at Guantanamo did, they abandoned the tried and true and lawful methods of Army Field Manual 34-52 and wrote a new playbook, a playbook that included intimidation with dogs, sexual humiliation, and sleep deprivation. These and other methods were employed at Guantanamo and, as the Schlesinger report put it, migrated to Abu Ghraib, where they resulted in the shocking conduct portrayed in the infamous photographs. The Secretary of Defense said “take the gloves off” and the soldiers and sailors of Guantanamo saluted smartly and said, “Yes, Sir!” In fact, many of the illegal and abusive “enhanced” interrogation techniques were personally approved for use by the Secretary of Defense; other techniques, like the frequent flyer program, were simply invented on the fly.

The public revelation of the events at Abu Ghraib on 60 Minutes II in late April 2004, caused the Department of Defense to go into full damage control mode. As part of the damage assessment, Secretary Rumsfeld dispatched the Navy Inspector General, Vice Admiral Church, to Guantanamo to evaluate the treatment of detainees there. He visited Guantanamo from May 5 to May 7, 2004, and reported back to the Secretary and to the press that there was virtually no detainee abuse at Guantanamo, and that everything was in order. Gen Hood was running a tight ship. Detainees received great treatment. Incredibly, the very day that Admiral Church was investigating conditions at Guantanamo and finding the treatment of detainees to be so wonderful, detention officials at Guantanamo ordered the initiation of the frequent flyer program on Mohammad Jawad. Before the wheels of Admiral Church’s plane were even off the Guantanamo runway, Mohammad Jawad’s arms and legs were being shackled in preparation for the first of 112 moves up and down the hall of L Block, every 3 hours for the next 14 days. While Jawad was being shackled for the first of these moves, back on Capitol Hill, Secretary of Defense Rumsfeld was testifying before the Senate and House Armed Services Committees, reassuring the nation that the abuse at Abu Ghraib was isolated to a few rogue guards. When Secretary Rumsfeld testified before the HASC on May 7, 2004, the day the torture of Mohammad Jawad commenced, he told Congress, in reference to those detainees who had been abused at Abu Ghraib, Quote “I am seeking a way to provide appropriate compensation to those detainees who suffered such grievous and brutal abuse and cruelty at the hands of a few members of the U.S. military. It’s the right thing to do.” Today, the government takes a decidedly different tack. They deny the suffering of Mr. Jawad, accusing him of being weak. And they are attempting to reward him by pressing forward with the first war crimes trial against a child soldier in the history of the civilized world.

Major General Hood the JTF-GTMO Commander who took command in March 2004, states that he ordered the frequent flyer program stopped in late March 2004. He says he did not authorize and would not have authorized the program to be administered to Mohammad Jawad. Gen James T. Hill, the Southcom Commander, the person to whom Maj Gen Hood reported directly, states that he did not authorize the frequent flyer program, did not know about it, and that is was contrary to his orders which required prior approval for sleep deprivation and limited it to four days. The Joint Detention Group Commander, Maj Gen Cannon disavows any knowledge of Mr. Jawad’s treatment, in fact, MG Cannon seems to have developed a very convenient case of amnesia. The Joint Intelligence Group Director, Esteban Rodriguez, doesn’t know about Jawad’s treatment specifically, but states that there was a second, unauthorized frequent flyer program carried out by the Joint Detention Group used as a form of disciplinary measure. He said, as did Maj Gen Hood, that there was no special effort to collect intelligence from Mr. Jawad, that he was not believed to possess any valuable intelligence. This is borne out by the fact, at least based on the information provided to me by the government, that no interrogations of Mr. Jawad took place at or near the time that he was being tortured. Thus, the most likely scenario is that they simply decided to torture Mr. Jawad for sport, to teach him a lesson, perhaps to make an example of him to others. Whatever the reason, it was a direct violation of MG Hood’s orders, and a grave breach of the Geneva Convention and the Convention against Torture.

According to MG Hood, the first he learned of this is when I informed him a couple of weeks ago. He was provided the DIMS report, the motion, and the spreadsheet that I prepared. What was his reaction? A resounding thud of indifference. In fact, it took an order from you, your honor, to even get him to talk me about it. Here was a Major General in the Army who has just learned that a detainee was subjected to grave abuse, on his watch, in direct violation of his orders. One would have expected him to go through the roof, to order heads to roll, to launch an immediate investigation and he couldn’t even be bothered. Quite a contrast from the way General Hartmann reacted when he thought his orders weren’t being followed.

As for MG Cannon, he was similarly apathetic, if not more so about the plight of Mohammad Jawad. It is an absolute disgrace that this officer has been promoted twice after allowing a suicidal teenager to be subjected to this kind of abuse in his detention facility. It is my recommendation that charges be preferred against MG Cannon under the UCMJ for cruelty, maltreatment and abuse, dereliction of duty, and violation of a lawful order at the earliest opportunity. He was the Commander of the Detention Group. He completely and utterly failed to prevent the flagrant abuse of a detainee under his protection. It is high time that someone in a position of authority be held accountable, and not just the guards who were carrying out orders this time.

Why was Mohammad Jawad tortured? Why did military officials choose a teenage boy who had attempted suicide in his cell less than 5 months earlier to be the subject of this sadistic sleep deprivation experiment? Not that anything would justify such treatment, of course, but at least in the case of the other detainees known to have been subjected to sleep deprivation, they were believed to possess critical intelligence that might save American lives. Unfortunately, we may never know. I’ve asked to speak to the guards who actually carried out the program, and I’ve been denied. In the absence of information to the contrary, which the government would surely provide if it existed, we are left to conclude that it was simply gratuitous cruelty.

The government admits that Mohammad Jawad was treated “improperly,” but offers no remedy. We won’t use any evidence derived from this maltreatment, they say, but they know that there was no evidence derived from it because the government didn’t even bother to interrogate him after they tortured him. Exclusion of non-existent evidence is not a remedy. Dismissal is a severe sanction, but it is the only sanction that might conceivably deter such conduct in the future.

February 7, 2002. America lost a little of its greatness that day. We lost our position as the world’s leading defender of human rights, as the champion of justice and fairness and the rule of law. But it is a testament to the continuing greatness of this nation, that I, a lowly Air Force Reserve Major, can stand here before you today, with the world watching, without fear of retribution, retaliation or reprisal, and speak truth to power. I can call a spade a spade, and I can call torture, torture.

Today, Your Honor, you have an opportunity to restore a bit of America’s lost luster, to bring back some small measure of the greatness that was lost on Feb 7, 2002, to set us back on a path that leads to an America which once again stands at the forefront of the community of nations in the arena of human rights.

Sadly, this military commission has no power to do anything to the enablers of torture such as John Yoo, Jay Bybee, Robert Delahunty, Alberto Gonzales, Douglas Feith, David Addington, William Haynes, Vice President Cheney and Donald Rumsfeld, for the jurisdiction of military commissions is strictly and carefully limited to foreign war criminals, not the home-grown variety. All you can do is to try to send a message, a clear and unmistakable message that the U.S. really doesn’t torture, and when we do, we own up to it, and we try to make it right.

I have provided you with legal authority for the proposition that you have the power to dismiss these charges. I can’t stand before you and say that you are legally required to do so. But I can say that that it is a moral imperative to do so, and I ask that you do so.

A few snippets:

According to research carried out by Reprieve, the US may have used as many as 17 ships as “floating prisons” since 2001. Detainees are interrogated aboard the vessels and then rendered to other, often undisclosed, locations, it is claimed.

Ships that are understood to have held prisoners include the USS Bataan and USS Peleliu. A further 15 ships are suspected of having operated around the British territory of Diego Garcia in the Indian Ocean, which has been used as a military base by the UK and the Americans.

…

Clive Stafford Smith, Reprieve’s legal director, said: “They choose ships to try to keep their misconduct as far as possible from the prying eyes of the media and lawyers. We will eventually reunite these ghost prisoners with their legal rights.

“By its own admission, the US government is currently detaining at least 26,000 people without trial in secret prisons, and information suggests up to 80,000 have been ‘through the system’ since 2001. The US government must show a commitment to rights and basic humanity by immediately revealing who these people are, where they are, and what has been done to them.”

(My emphasis — can this really be true? Is this ‘secret prison’ number including all the Iraqi detainees in camps in Iraq, or is there some other network of major camps?)

The Guardian article is based on a forthcoming report from an NGO called Reprieve. The Clive Stafford Smith quoted in the article heads Reprieve-UK, which describes itself as follows:

Reprieve provides frontline investigation and legal representation to prisoners denied justice by powerful governments across the world, especially those governments that should be upholding the highest standards when it comes to fair trials.

Reprieve lawyers represent people facing the death penalty, particularly in the USA, or when those facing execution are British nationals. And we represent prisoners denied justice in the name of the ‘War on Terror’, including those held without charge or trial in Guantánamo Bay and the countless secret prisons beyond. None of these prisoners can afford to pay for representation.

It has been said that you can judge a society by how it treats people accused of violating its laws. Through the example set by the world’s most influential nations, fundamental human rights principles stand or fall across the world.

Reprieve uses international and domestic law as a tool to save lives, deliver justice and make the case for world-wide reform.

UNIVERSITY OF CALIFORNIA, BERKELEY

PROFESSOR J. BRADFORD DELONG
DEPARTMENT OF ECONOMICS, UNIVERSITY OF CALIFORNIA AT BERKELEY
BERKELEY, CALIFORNIA 94720-3880

RESEARCH ASSOCIATE, NATIONAL BUREAU OF ECONOMIC RESEARCH

EMAIL: delong@econ.berkeley.edu

TEL: 510-643-4027; FAX: 510-642-6615

May 6, 2008

Professor William Drummond
Chair, Academic Senate, Berkeley Division
Stephens Hall
University of California

Dear Professor Drummond:

As we discussed this morning, I write this as a consequence of reading what Boalt Dean Chris Edley calls the "Torture Memo" of Professor John Yoo—which horrified me. I write to ask you to appoint a special committee to examine the matter of Professor John Yoo--the matter that Boalt Hall Dean Chris Edley has named "The Torture Memo and Academic Freedom"—the role played by John Yoo in the Bush administration"s policy of subjecting to torture not high-ranking Al Qaeda members with information about ticking bombs but low-level prisoners irrespective of their guilt or innocence or of any information suggesting their guilt or innocence.

I ask you to appoint to this special committee members of the faculty with expertise in moral philosophy, the role of the university, international relations, human rights, and constitutional law. I ask you to instruct this committee to write of a public report to the Academic Senate no later than this Labor Day, advising the Senate of the pros and cons of actions that the Academic Senate might or might not take in the matter of Professor John Yoo, including but not limited to:

(I) no action, as Professor Yoo"s actions while on leave at the Office of Legal Counsel have been misrepresented in the press and on the internet, and he has been defamed.

(II) no action, as Professor Yoo's "Torture Memo" and related work while on leave at the Office of Legal Counsel are protected under academic freedom or are otherwise not germane to his status at Berkeley.

(III) a complaint to Executive Vice Chancellor and Provost George Breslauer calling for the censure of Professor Yoo for actions while on leave at the Office of Legal Counsel that amount to one or more of:

(A) a breach of professional legal ethics, with respect to the duty that a lawyer and above all a law school teacher who educates future lawyers owes his clients to inform them truthfully and completely of the state of the law;

(B) work performed for the Office of Legal Counsel sufficiently misleading to rise to the same level in a professional school as work that violates the principles of scholarly integrity reaches elsewhere in the university;

(C) participation in a conspiracy to violate U.S and international law by torturing detainees, detainees whose guilt in the acts of or even association with Al Qaeda was not only not proven but not even likely.

(IV) a complaint to Executive Vice Chancellor and Provost George Breslauer calling for the dismissal of Professor Yoo for actions while on leave at the Office of Legal Counsel that are, et cetera.

If you have not read John Yoo"s recently-released "Torture Memo," and have not been as horrified and appalled as I am, I strongly urge you to read it in full.

However, after reading the "Torture Memo" I found myself frozen, with no firm or settled judgment as to what appropriate action is in this context. I lack sufficient knowledge of the facts. I lack sufficient expertise on the issues. Thus I want you to appoint a special committee to write a report because I am enough of a liberal and enough of an academic to believe that discussion of these issues will help.

On the one side there are the claims of academic freedom, enunciated most strongly by our own medieval historian Ernst Kantorowicz just before his resignation from the faculty in protest. He said:

There are three professions which are entitled to wear a gown: the judge, the priest, the scholar. This garment stands for its bearer's maturity of mind, his independence of judgment, and his direct responsibility to his conscience and his god. It signifies the inner sovereignty of those three interrelated professions: they should be the very last to allow themselves to act under duress and yield to pressure. It is a shameful and undignified action, it is an affront and a violation of both human sovereignty and professional dignity that the Regents of this university have dared to bully the bearer of this gown into a situation in which--under the pressure of bewildering economic coercion--he is compelled to give up either his tenure or, together with his freedom of judgment, his human dignity and responsible sovereignty as a scholar...

In Professor Kantorowicz's view, a Berkeley faculty member should be allowed to state whatever his or her judgment leads him to state--even if it is that the government of the United States should be overthrown by force and violence--and that no pressure or threats of any kind should be applied to discourage him from saying what he or she decides to say.

On the other side there are at least four interrelated considerations.

The first consideration is that Professor Yoo is professor at a professional school, Boalt Hall, and thus must teach and model professional behavior that will be expected of his students as lawyers. Professor Yoo failed in his Torture Memo to make any reference to the Korean War case of Youngstown, an essential part of any good-faith contemporary analysis of the war powers of the executive branch. This failure to analyze and other deficiencies in the memorandum make it, I have been told, a serious breach of professional ethics--misconduct in failing to fulfill his professional duty to provide his clients with a complete and truthful statement of the law. Writing legal arguments that ignore (not find some way to distinguish, but flatly ignore) controlling precedent is misconduct. Students learning to be lawyers need to be protected from coming to believe that it is an acceptable part of lawyering.

The second consideration is that the work product for others outside the university performed by faculty who teach at professional schools plays a role analogous to that of academic research in other branches of the university. I am informed by some that the argumentative omissions and misrepresentations in the Torture Memo and in other work by John Yoo for the Office of Legal Counsel amount to misconduct that rises to a level equivalent to that of falsifying evidence in a scholarly work. As one attorney observed, "while outside legal work isn't formally scholarship, it has its own ethical obligations." The absence of relevant Supreme Court precedent from the Torture Memo is a "failure to meet the standards of practice required by the legal profession [that] appears... close enough to a failure to abide by the standards of the scholarly profession that it can be treated as an equivalent level of scholarly misconduct."

The third consideration is that some claim that Professor Yoo was not just an advisor, informing those whom Boalt Dean Chris Edley calls the "deciders"--George W. Bush, Richard Cheney, George Tenet, and Donald Rumsfeld--his view of what the law was. Professor Yoo was an implementer. The decision had already been made to torture detainees of unknown but probably low value who there was no reason to think had any knowledge of any possible "ticking bomb." Attorneys at the CIA and the Department of Defense were protesting that this policy of routine torture was illegal: contrary to U.S. and international law and treaty, and exposed them to potential criminal sanctions. Professor Yoo was asked not to provide an opinion but to write a document to override objections to an already settled-upon course of action, making wrongful use of the opinion-issuing power the Attorney General possesses within the executive branch to silence lawyers who had correctly evaluated the legal framework--and so cramdown the torture policy by issuing what was essentially a "get out of jail free" card in the guise of an OLC opinion. This, I am informed by some, may be a crime. I am informed that the standard, under treaties that are the law of the land in the U.S., is that an act of legal advice that materially contributes to the perpetration of acts of torture and cruel, inhuman, or degrading treatment is a criminal act if the actors were at minimum reckless as to the consequences of their advice: it is necessary only that the actors have accepted that their conduct could possibly and forseeably lead to the commission of a crime, not that they have known the exact crime that was contemplated and was to be committed.

The fourth consideration is that it is a key part of our society that our lawyers in the common-law tradition have no association with torture--that it is part of their professional identity to know nothing of the rack, the thumbscrew, the strappado, induced hypothermia, and the water torture. So William Blackstone wrote centuries ago. A rack had been set up in the Tower of London by the Duke of Exeter under Henry IV, and had been used by Queen Elizabeth to torture Jesuits, and by King James I to torture conspirators in the aftermath of the Gunpowder Plot--a true ticking bomb. But, William Blackstone proudly stated, this rack had always been "an engine of state, and not of law." Some inform me that John Yoo's role in making the strappado and the water torture--which Bush administration members of the twenty-first century speak of in euphemisms as "severe interrogation methods," just as the Elizabethans of the sixteenth century would speak of taking prisoners to embrace "the Duke of Exeter's daughter"--routine bureaucratic policy is enough of a breach of professional ethics to make him unsuited to teach in a law school.

I cannot evaluate these considerations. The facts are unclear. I have no special expertise in moral philosophy, professional ethics, the role of the university, international relations, human rights, or constitutional law. I am out of my depth. But I do know that these are vitally important issues--and I firmly believe that Berkeley as an institution does itself no good service if it does not publicly address the matter of John Yoo, and does not face us with an extraordinarily sharp conflict between powerful principles.

And so I ask that this matter be referred to a committee that has the proper expertise: a committee that can properly weigh the considerations of moral philosophy, professional ethics, the role of the university, international relations, human rights, and constitutional law, and publicly set out its conclusions and our options. I do this in the classical liberal belief that argument and discussion are good, and will make us see these issues more clearly.

Sincerely yours,

J. Bradford DeLong
Professor of Economics

This is a smart letter. It may seem knavish to quibble, but I'm going to anyway.

First, a minor point: I personally don't believe that the standards of care or competence should be any different in a professional school than in the sciences or in economics. So I'm puzzled about the first point -- would we make such arguments about physicists or engineers who messed up calculations on the space shuttle? I'd make a similar argument about the second point: if Yoo was on leave when he did what he's accused of, tenure protects him from official repercussions at Berkeley, even if it was supremely shoddy work (which it was: see Apologia Pro Tormento: Analyzing the First 56 Pages of the Walker Working Group Report (aka the Torture Memo) and Were the Torture Memos Just Normal Lawyering?).

The key point for me is the third one. I believe the case against Berkeley's retention of Yoo is actually stronger than the "third consideration" above suggests. The worst case is not that Yoo went along with a policy already made, but rather that he was a necessary and willing participant in the commission of war crimes.

I repeat: the case against Yoo isn't about some article he published, or some view he took on some issue, or that he gave an abstract opinion in government. It's a claim that he materially participated in a war crime. Not some misdemeanor or felony. A war crime.

Under international law, any act that materially contributes to the perpetration of a war crime can make the actor an accomplice if the act is performed with the requisite intent.75 Yoo and Bybee may not have intended for acts of torture and cruel, inhuman, or degrading treatment to take place, but they were at minimum reckless as to the commission of such acts.76 Yoo and Bybee's recklessness in this regard appears to meet the intent requirement for aiding and abetting war crimes under international law.77 As the International Criminal Tribunal for Yugoslavia ("ICTY") expressed in Prosecutor v. Kvocka,78 "[t] he aider and abettor must. . . at least have accepted that such a commission of a crime would be a possible and foreseeable consequence of his conduct.... [I]t is not necessary that the aider or abettor know the precise crime that was intended or which was actually committed.

If Yoo's actions met this standard then he's a war criminal. And if he's ever adjudged a war criminal by a competent tribunal, I presume most sensible people would agree that he has no business being a professor of anything.

In the ordinary course, if there were any grounds to expect that a competent prosecutor or tribunal would at some reasonably proximate time become seized of this issue and make a reasoned judgment, I'd be inclined to say it is acceptable for Berkeley let it go until then. (That seems to be what Christopher Edley, Jr. both says Berkeley's rules require and what he personally advocates.) But for obvious political reasons I suspect that there is little realistic chance of a serious investigation in the USA as to whether war crimes were committed by the Bush administration, and if so who is responsible. That's a pity, but it seems the most likely state of affairs, and one has to reason and plan based on what seems likely. Prosecutions abroad are less unlikely, but if the alleged perpetrators don't travel to the jurisdictions most likely to act, that too will not come to pass. One certainly cannot reasonably rely on them.

What, then, is a great University like Berkeley to do if it comes to fear it may be harboring a war criminal in its midst? It cannot rely on external forces to solve the problem for it. Mob rule -- firing someone because people are baying for their job -- is not the answer, although collective shunning might be a good first move. Universities are not well set up to adjudicate a dispute as to whether a professor committed a war crime. Yet the difficulty of the task (and, one hopes, the rarity of the need to face it) is not in my opinion an excuse for doing nothing. This appears to be a minority view: for what seems to be the majority view see Leiter, or the various posts at Balkanization -- although most proponents of the "drop it now" view don't address what I see to be the key issue: the ground for discharging Yoo, if there is one, is the all-too-plausible allegation that he took part in a war crime. Not just advocated one from the ivory tower, but committed or aided and abetted the commission of actions prohibited by our law, by jus cogens, and by any standard of decency. The countervailing problem is that this claim is extremely difficult to adjudicate in a University setting, and his tenure demands no less than some initial test for substantial cause, followed by a full and fair proceeding. That is asking a lot of a University, which after all is in the education business, not the war crimes adjudication business.

Brad's letter is smart because it asks the University to frame the problem and examine how it might be solved. Perhaps that will be a first step to a resolution. Perhaps Berkeley's rules do not create an avenue for one.

Perhaps we will learn something.

The manner in which free societies lose their moral compass is always incremental. Step by step by step, certain core values are whittled away. There is rarely a moment at which a government stands up, and asks its people if they wish to abandon such “quaint” notions as the Geneva Conventions, the rule of law, humane interrogation or habeas corpus. These things are abandoned incrementally or secretly, slice by slice, euphemism by euphemism, the chronology always clearer in retrospect than at the time. And each incremental step is always portrayed as a small but essential temporary sacrifice for the sake of security in a time of great and imminent peril.

And so defenders of torture have long argued that is is essential to make torture legal - but only in the ticking time bomb scenario. And yet, such a scenario has not yet happened and the United States has still indisputably abused and dehumanized thousands of prisoners in its custody, “disappeared” and tortured hundreds, and seen more than a dozen die in “interrogation”. We now know, moreover, the following undisputed facts: the president of the United States and his closest advisers devised, orchestrated and monitored interrogation methods banned by the Geneva Conventions at Guantanamo Bay and subsequently in every theater of combat; these techniques were used not only in the extra-legal no-man’s land of Guantanamo Bay but also at the prison at Abu Ghraib where photographic evidence of many of the actual techniques explicitly authorized by the president - stress positions, hoods, mock-executions, etc. - was incontrovertible. We now know that those techniques that the president expressed “shock” at were already explicitly authorized for use by other agents by him long before Abu Ghraib was exposed.

Read the rest. It’s good.

And because Congress remains basically supine. Which is also depressing.

And because the press is still treating most of these scandals as one-day stories on page 23. Which is also depressing.

But even in this fog of despond, I have to draw your attention to Marty Lederman’s excessively fine post today, “The Underdeveloped Jurisprudence of the Forcing/Pouring Distinction”.

I think it’s a shame that any college group would choose to invite a person who appears to be a war criminal to speak — although I think one should also note that Ashcroft’s personal participation in what appear to be war crimes may not have been as clear at the time this invitation was issued — but I think that this Knox College student demonstrates what part of the response should be.

And, of course, the really incredible thing is that even with the latest revelations, from what we know, Ashcroft was not the worst of the lot.

I’ve been saying this for a long time, and think it is as true, or more true, than ever. The critical issue, though, is not so much the presence of absence of immunity for various actors so much as a national unwillingness to bring the guilty to justice. Only when a nation will not police its own does the international community have a right (and duty) to step in.

PS. Read the article by Philippe Sands, The Green Light, that Balkin links to.

In most issues of the Washington Monthly, we favor articles that we hope will launch a debate. In this issue we seek to end one. The unifying message of the articles that follow is, simply, Stop. In the wake of September 11, the United States became a nation that practiced torture. Astonishingly—despite the repudiation of torture by experts and the revelations of Guantanamo and Abu Ghraib—we remain one. As we go to press, President George W. Bush stands poised to veto a measure that would end all use of torture by the United States. His move, we suspect, will provoke only limited outcry. What once was shocking is now ordinary.

On paper, the list of practices declared legal by the Department of Justice for use on detainees in Guantanamo Bay and other locations has a somewhat bloodless quality—sleep deprivation, stress positions, forced standing, sensory deprivation, nudity, extremes of heat or cold. But such bland terms mask great suffering. Sleep deprivation eventually leads to hallucinations and psychosis. (Menachem Begin, former prime minister of Israel, experienced sleep deprivation at the hands of the KGB and would later assert that “anyone who has experienced this desire [to sleep] knows that not even hunger and thirst are comparable with it.”) Stress positions entail ordeals such as being shackled by the wrists, suspended from the ceiling, with arms spread out and feet barely touching the ground. Forced standing, a technique often used in North Korean prisons, involves remaining erect and completely still, producing an excruciating combination of physical and psychological pain, as ankles swell, blisters erupt on the skin, and, in time, kidneys break down. Sensory deprivation—being deprived of sight, sound, and touch—can produce psychotic symptoms in as little as twenty-four hours. The agony of severe and prolonged exposure to temperature extremes and the humiliation of forced nudity speak for themselves.

Then there is waterboarding, a form of mock execution by drowning, a technique that has been used in so-called “black sites.” In addition to the physical pain and terror it induces, long-term psychological effects also haunt patients—panic attacks, depression, and symptoms of post-traumatic-stress disorder. It has long been prosecuted as a crime of war. In our view, it still should be.

Ideally, the election in November would put an end to this debate, but we fear it won’t. John McCain, who for so long was one of the leading Republican opponents of the White House’s policy on torture, voted in February against making the CIA subject to the ban on “enhanced interrogation.” As for Hillary Clinton and Barack Obama, while both have come out strongly against torture, they seldom discuss the subject on the campaign trail. We fear that even a Democratic president might, under pressure from elements of the national security bureaucracy, carve out loopholes, possibly in secret, condoning some forms of torture.

Over the past decade, voters have had many legitimate worries: stagnant wages, corruption in Washington, terrorism, and a botched war in Iraq. But we believe that when Americans look back years from now, what will shame us most is that our country abandoned a bedrock principle of civilized nations: that torture is without exception wrong.

It is in the hopes of keeping the attention of the public, and that of our elected officials, on this subject that the writers of this collection of essays have put pen to paper. They include a former president, the speaker of the House, two former White House chiefs of staff, current and former senators, generals, admirals, intelligence officials, interrogators, and religious leaders. Some are Republicans, others are Democrats, and still others are neither. What they all agree on, however, is this: It was a profound moral and strategic mistake for the United States to abandon long-standing policies of humane treatment of enemy captives. We should return to the rule of law and cease all forms of torture, with no exceptions for any agency. And we should expect our presidential nominees to commit to this idea. —The Editors

There are articles by the following luminaries:

• Bob Barr
• Rand Beers
• Peter Bergen
• Jimmy Carter
• Steve Cheney
• Amy Chua
• Richard Cizik
• Wesley K. Clark
• Jack Cloonan
• Chris Dodd
• Kenneth M. Duberstein & Richard Armitage
• Eric Fair
• Carl Ford
• Lee F. Gunn
• Chuck Hagel
• Lee H. Hamilton & Thomas H. Kean
• Gary Hart
• John Hutson
• Claudia Kennedy
• John Kerry
• Harold Hongju Koh
• Carl Levin
• Richard Lugar
• Leon E. Panetta
• Nancy Pelosi
• William J. Perry
• Paul R. Pillar
• Tim Roemer
• John Shattuck
• Anne-Marie Slaughter
• Theodore C. Sorensen
• William H. Taft IV
• Thomas G. Wenski
• Lawrence B. Wilkerson
• Steve Xenakis