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In early 2008, the national spotlight focused on Berkeley as the city council proclaimed recruiters for the US Marines "unwelcome intruders." As antiwar liberals clashed with offended conservatives, the protests and counter-demonstrations splashed across the evening news. Just a few blocks away, virtually unmolested by protesters or TV cameras, was John Yoo, a UC Berkeley law professor whose secret government work was more objectionable than anything Marine recruiters or Berkeley's city council could possibly have concocted. Yoo, a tenured professor at Boalt Hall since 1999, is the author of the infamous "Torture Memos" -- a set of repudiated legal opinions that led to prisoner abuses in US prisons at Abu Ghraib, Guantanamo Bay, and elsewhere. Yoo wrote the memos for the Bush administration's Department of Justice while on leave of absence from UC Berkeley from 2001 to 2003. A staunch conservative, he also is believed to have laid the legal foundation for the nation's warrantless wiretapping program. Yoo is now back at Boalt quietly teaching constitutional law, mostly overlooked by both the Bay Area media and anti-Bush activists. But in legal circles, both liberal and conservative scholars have sharply criticized the torture memos while engaging in online debates about whether he should be charged with war crimes, fired from Berkeley, or simply left alone. One of his critics is Jack Goldsmith, a fellow conservative and former close friend. Goldsmith, who is now a Harvard University Law School professor, succeeded Yoo in the Justice Department and ultimately rescinded the torture memos -- a move he described as being unprecedented. In a book released last fall, Goldsmith said he had no choice but to repudiate Yoo's work because it was so "extreme" and "one-sided." He said the memos amounted to an "advance pardon" or "get-out-of-jail-free card" for any interrogator who tortured prisoners in violation of US and international laws. The Bush administration made one of Yoo's torture memos public on March 31, prompting some critics to immediately dub it the "Abu Ghraib Memo." Among other things, the memo extended the harsh and humiliating techniques employed by the CIA to military interrogators in Iraq and Afghanistan. The revelation of the 81-page memo sparked an editorial in The New York Times that questioned Yoo's continued employment at Berkeley, and spurred a call by two human rights organizations for Yoo to be fired. Edley essentially said that the forty-year-old law professor could not be fired unless he was convicted of war crimes. There is a chance, although remote, that such a thing could happen. Following World War II, Nazi lawyers were tried and convicted of war crimes at Nuremberg for their roles in enabling Hitler to commit atrocities. However, because of a 2006 US law that provided retroactive immunity to government officials, Yoo may never face criminal charges in the United States. Nonetheless, he could be prosecuted in a foreign or international court. But a closer look at the University of California's tenure regulations reveals that UC Berkeley need not wait for the intervention of foreigners. For starters, it's highly questionable whether Yoo's work for the Bush White House truly constituted an instance of academic freedom. And even if it did, there's still a case to be made that the former law clerk for Supreme Court Justice Clarence Thomas engaged in misconduct and violated his professional legal ethics. John Choon Yoo was part of a wave of conservative ideologues who swept into the executive branch following the inauguration of George W Bush in 2001. Yoo is a member of the ultra-right-wing Federalist Society and at the time was already known as one of the "New Sovereigntists," a group of conservative intellectuals deeply critical of the growing influence of international law on American jurisprudence. He also shared Vice President Dick Cheney's view of unlimited presidential power in wartime, and possessed special skills that proved invaluable to the White House. He's brilliant, supremely confident, and as a leading scholar from a prestigious -- and liberal -- university, he carried the appearance of bipartisan street cred. After 9/11, Yoo played an integral role within the administration. He became a member of a small group of high-ranking lawyers who called themselves the "War Council." In his 2007 book, The Terror Presidency, Jack Goldsmith wrote that the group met often "to plot legal strategy in the war on terrorism." Goldsmith was Yoo's good friend and fellow new sovereigntist, who took over for him in the Justice Department. Although the War Council had an extremely influential membership, including then White House Counsel Alberto Gonzales and Cheney's lead attorney David Addington, none possessed Yoo's special position in the administration. At the time, Yoo was a top deputy in the Justice Department's Office of Legal Counsel. Although obscure to anyone outside the Beltway, the OLC is one of the most important divisions of the executive branch. Its job is to interpret law and to be the president's official legal opinion writer. As a result, its opinions and memos carry the weight of the law, unless the courts later overturn them. Most important, the OLC opinions legally insulate from criminal prosecution anyone who follows them. As a result, the department's work has a long history of being unbiased, thoroughly researched, and based on sound legal footing, according to Goldsmith, who became head of the office in 2003. The office suddenly became a rubber stamp for whatever Bush and Cheney wanted. Yoo, according to Goldsmith, "wrote opinion after opinion approving every aspect of the administration's aggressive antiterrorism efforts." Government officials, Goldsmith explained, were deathly worried about a future administration, especially a Democratic one, investigating them for criminal acts. So they wanted -- and needed -- legal opinions that would inoculate them. "The opinions made Yoo enormously valuable to the White House after 9/11 and gave him extraordinary influence within the administration." Yoo apparently authored one of his first controversial memos in October 2001, about five weeks after 9/11. Some believe the opinion likely formed the basis of the administration's warrantless eavesdropping program. First revealed by The New York Times in 2005, the program allowed government officials, without getting a warrant, to secretly listen to phone conversations of Americans whom they believed had contacts with terrorists. The October 2001 memo, which since has been rescinded but most of which still remains classified, stated boldly that the Fourth Amendment's broad prohibition against search and seizure without a warrant "had no application to domestic military operations" in the war on terror. The existence of the memo was revealed in a footnote in Yoo's second torture memo. As for the first torture memo, Yoo wrote it in 2002 after the capture of Abu Zubaydah, a man the Bush administration touted as the first high-level al-Qaeda operative to be arrested after 9/11. In an interview with Esquire magazine published last month on its web site, Yoo acknowledged being under "time pressure" to finish the memo because of Zubaydah's arrest. FBI agents had been questioning Zubaydah using traditional law-enforcement interrogation techniques, but CIA officials were reportedly growing impatient and believed that they needed to use much harsher methods to make Zubaydah crack. After working feverishly for weeks, the Berkeley law professor finished the opinion in August 2002. One of the memo's main provisions was that it altered the traditional definition of torture to make it easier for interrogators to use aggressive tactics that previously had been illegal. Under Yoo's new definition, it wasn't torture unless the interrogator was inflicting pain "associated with a sufficiently serious physical condition or injury, such as death, organ failure, or serious impairment to body functions." Yoo told Esquire that he decided to use this highly technical wording because he believed the traditional definition was too "blurry."...
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