The Dean of the School of Law at Berkeley defends his school for continuing to shelter John Yoo, who is a tenured professor at that now tainted institution. Some of his argument makes sense. There are issues of academic freedom involved, and if he just stuck to the position that he abhors John Yoo, but he’s stuck with him because he has tenure, then the piece might be unobjectionable. But he also says this, which I think reflects a profound misapprehension of the duties of a lawyer, the moral responsibility of lawyers, and the dynamics of the conspiracy of which Yoo was a part.
Here’s the quote:
As critical as I am of his analyses, no argument about what he did or didn’t facilitate, or about his special obligations as an attorney, makes his conduct 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. Yes, it does matter that Yoo was an adviser, but President Bush and his national security appointees were the deciders.
Here the good Dean seeks to draw a distinction between the enabler and the enabled. We must recall that Yoo was not attempting to defend a client who had already engaged in some reprehensible activity: he was trying to come up with a legalistic sounding formula to give that “client” a green light to commit crimes in the future. He was, in fact, part of a conspiracy to commit criminal acts: his role being to “launder” the criminal acts by giving them a fraudulent legal sanction. This was part and parcel of the plan, and he is as much a part of that conspiracy as Rumsfeld, who passed the word to his underlings that it was now alright to torture. His role was similar to that of Albert Speer, who, if I recall correctly, never personally gassed or tortured any Jews. He just designed the system that facilitated and enabled the folks on the ground to do those very things more efficiently.
There is a world of difference between giving a person charged with a criminal act the best defense you can (even if that means making morally suspect legal arguments, which will, after all, be passed on by a court) and advising someone, without the reasonable possibility that your advice will be reviewed by a judge, that it is okay to commit a crime.
I’m not sure what I would do about Yoo if I were the Dean at Berkeley, but I would, I hope, not try to distinguish his acts from those of his co-conspirators. Were there justice in this world, he would be standing before the bar as a defendant in a war crimes trial, right next to the “deciders”.
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