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Yoo’s Tenure Questioned Over Bush Torture Policy

October 20, 2009 at 12:00 AM EST
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Spencer Michels reports on the ongoing academic wrangling over former Bush attorney John Yoo's instruction at the University of California, Berkeley.
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JEFFREY BROWN: Now: The national debate on torture spills over to a prestigious law — law school.

“NewsHour” correspondent Spencer Michels reports.

SPENCER MICHELS: Since the beginning of the school year, protesters dressed as prisoners or detainees have dogged law professor John Yoo at the University of California at Berkeley. They want the university to fire him for advising the Bush administration, as an attorney in the Justice Department, that it could legally torture suspected terrorists to get information.

PROTESTER: This is a not just a question of academic opinions. This is a question of war crimes. People like John Yoo, these people should be fired.

SPENCER MICHELS: Forty-two-year-old John Yoo has taught here since 1993, except for 2001 to 2003, when he worked for the Justice Department in the Office of Legal Counsel.

During those years, after 9/11, the U.S. was interrogating prisoners, suspected terrorists, at places like Abu Ghraib and Guantanamo. Yoo wrote several memos on how far the interrogators could go in pressuring prisoners to reveal information. Those memos argued that techniques such as water- boarding, sleep deprivation, and exploiting a detainee’s fear of insects were, in fact, legal.

Yoo’s actions have reverberated throughout Boalt Hall, the Berkeley law school where Yoo teaches. Students and faculty are debating the bounds of academic freedom, and whether a professor should be held responsible for controversial work done outside the university.

DAVID ARABELLA, law student: I believe that he does have a right to teach here, because people can have controversial views. But, personally, I’m not going to enroll in his class.

SPENCER MICHELS: The law school dean, Christopher Edley, who has served in several Democratic administrations, has been besieged by messages, the majority against Professor Yoo.

Weighing academic freedom

Christopher Edley
Dean, U.C. Berkeley Law
Academic freedom means that his right to be here and to teach has to be protected, until or unless there's some sort of a conviction.

CHRISTOPHER EDLEY, dean, U.C. Berkeley Boalt Hall School of Law: I have received thousands upon thousands of letters from literally all over the world.

While many students and faculty are critical of the Bush administration policies and even of some of John's actions, they think that academic freedom means that his right to be here and to teach has to be protected, until or unless there's some sort of a conviction.

JOHN YOO, Former Justice Department Official: Unfortunately, I am going to have to end this class.

SPENCER MICHELS: John Yoo has come under attack on several fronts. Australian TV infiltrated and disrupted his classroom. Progressive groups in Pennsylvania have advocated he be disbarred. Congress peppered him with questions about torture when he testified.

REP. JOHN CONYERS, D-Mich., judiciary committee chairman: Could the president order a suspect buried alive?

JOHN YOO: Mr. Chairman, I don't think that I have ever...

REP. JOHN CONYERS: I'm asking you that.

JOHN YOO: ... given the advice that the president cold bury somebody alive.

SPENCER MICHELS: Several civil lawsuits have been filed against him. And the Office of Professional Responsibility at the Justice Department has been investigating Yoo's memos since 2004, but hasn't yet released its findings.

"The New York Times" reported that the 220-page draft report concludes that "Bush administration lawyers committed serious lapses of judgment in writing secret memorandums, authorizing brutal interrogations, but that they should not be prosecuted."

Dean Edley maintains that investigating Yoo's off-campus activities is up to others; the university and its faculty cannot fill that role.

CHRISTOPHER EDLEY: They are not competent to make judgments of fact about what was or was not done in the Justice Department in 2002.

SPENCER MICHELS: But Edley's stand has annoyed some students and others.

How students are reacting

John Montague
California Law Student
He's a very good teacher. You know, it's a somewhat complicated subject matter, and he makes it very understandable and clear.

THOMAS FRAMPTON, law student: We need Dean Edley to step up to figure out what actually happened here.

SUSHIL JACOB, law student: We want to have an investigation to see whether there was legal malpractice. We want the university also to inquire to see where there was, not academic, but professional misconduct.

WOMAN: You know about the torture, right, Abu Ghraib, Guantanamo?

SPENCER MICHELS: Stephanie Tang, an organizer for an off-campus group, World Can't Wait, says, the university can and should investigate John Yoo's actions at the Justice Department.

STEPHANIE TANG, organizer, World Can't Wait: He came in and gave them what they wanted, an excuse to torture people. This would not have happened without the work of lawyers like John Yoo.

PROTESTER: War criminal!

PROTESTER: War criminal!

PROTESTER: War criminal!

SPENCER MICHELS: Tang's group took its protests to Yoo's classroom on the first day of school this semester. He teaches civil procedure and constitutional law, and his classes are very popular. Students say he is nonpolitical in class.

JOHN MONTAGUE, law student: Oh, he's a very good teacher. You know, it's a somewhat complicated subject matter, and he makes it very understandable and clear.

PROTESTER: Thousands of nameless people have been tortured.

SPENCER MICHELS: Because of the disruptions, he has closed his lectures to outsiders and declined our interview requests, even though he has been a frequent guest on the "NewsHour." In 2004, he discussed how to interrogate a captured al-Qaida leader who it is suspected has information about a bomb targeting America.

JOHN YOO: If such an extreme situation arose, we don't want to, I believe, take certain options away from the president, if by doing -- you know, aggressively interrogating someone, you could save thousands, if not millions, of American lives.

SPENCER MICHELS: But some faculty members don't buy that reasoning, and don't want to wait for an outside investigation.

PETER SELZ, professor emeritus, University of California, Berkeley: The man is a criminal, and there's no place for criminals to teach at this university.

SPENCER MICHELS: Professor Peter Selz is the retired founding director of the University Art Museum in Berkeley, across the street from the law school, which is featuring paintings of torture by Fernando Botero. The art was inspired by descriptions and photos of torture at Abu Ghraib prison in Baghdad.

PETER SELZ: These people violated international law and violated the Constitution, and violated everything that America stands for.

Demands continue for investigation

Peter Selz
Professor emeritus, U.C. Berkeley
The man is a criminal, and there's no place for criminals to teach at this university.

SPENCER MICHELS: But it's not that simple, according to the president of Berkeley's Academic Senate, law school professor Christopher Kutz, who has read the memos, which he calls fatally flawed.

CHRISTOPHER KUTZ, president, U.C. Berkeley Academic Senate: You need something more than simply incompetence to revoke a professor's tenure, especially somebody who's been hired, promoted, published in the top journals. John is one of the most prolific scholars on the Boalt faculty. What you need is some evidence of serious professional misconduct. And that is what we don't have yet.

SPENCER MICHELS: Kutz says a major issue which speaks to Yoo's professional reputation is whether he and other lawyers wrote memos, which were later disavowed by the government, simply to justify the Bush administration's interrogation policies.

That's not why he wrote them, says Boalt professor and former dean Jesse Choper.

JESSE CHOPER, law professor: People say, well, he was told -- he knew what they wanted, and he gave it to them.

I don't believe that. He gave them what -- he gave them an approach that was wholly consistent with virtually everything he did as a scholar beforehand.

SPENCER MICHELS: Choper was on the committee that granted Yoo tenure.

JESSE CHOPER: There's no question but what the memos said that they could engage in certain enhanced -- I forget the phrase -- enhanced interrogation techniques. Did he say, "You should do this"? No.

SPENCER MICHELS: Still, the issue of academic freedom is uppermost in the minds of many on the faculty, including the dean.

CHRISTOPHER EDLEY: To take somebody who espoused views that are sharply unpopular outside and to say that, because they're unpopular, we're going to -- to chastise or even discipline you, that, I think, absolutely flies in the face of everything we know about what makes a great university.

SPENCER MICHELS: John Yoo's future at Berkeley may have to wait for decisions elsewhere. His case is part of more far-reaching debates on whether the country should continue to investigate interrogation policies of the Bush administration and whether torture is ever justified.