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Berkeley professor stays cool under fire

He defends his memo on the status of prisoners amid calls for his ouster.

By Claire Cooper --
Sacramento Bee Legal Affairs Writer
May 26, 2004

As students and alumni of Boalt Hall School of Law continued calling for Professor John Yoo to recant or resign, the former Justice Department adviser said this week he has no misgivings about his service in the Bush administration or the legal memo at the center of the controversy.

"I thought I was playing a useful role and was happy to contribute with the country at war," said the UC Berkeley professor, referring to a 2002 memo in which he provided the Bush administration with legal justification for noncompliance with the Geneva Conventions on the humane treatment of military prisoners in Afghanistan.

The memo, written when Yoo served as deputy assistant attorney general in 2002, was addressed to Robert Delahunty, the Defense Department's general counsel. It predated the Iraq war and considered only the legal status of al-Qaida and the Taliban militia, concluding that as "non-state" actors, they weren't covered by international law or treaties.

On the Berkeley campus and elsewhere, many quickly made the link to U.S. treatment of prisoners in Iraq.

On Saturday, a day after the memo's release, 60 or 70 students wore red armbands over their graduation robes, and fliers were distributed accusing Yoo of "aiding and abetting war crimes."

By Monday, a petition was in circulation, demanding that Yoo apologize or leave.

"The odds of my resigning are about the odds of a Berkeley student flunking out, which are about zero," Yoo said.

In a telephone interview he said that while he could not discuss the substance of the memo, he "would not repudiate what I did in the government."

He defended his view - that "al-Qaida members are not prisoners of war" - as "a very sensible reading of the treaties and laws of war," one he said he often has discussed publicly in law review articles and speeches.

He also dismissed the thought that the memo led to abuses in Iraq as "speculation ... and also wrong."

"The war (in Iraq) is clearly covered by the Geneva Conventions," Yoo said. "We've seen pictures which show violations of the Geneva Conventions. Those people ought to be punished."

He said Afghanistan was a different conflict, covered by different rules.

The petition being circulated on the Internet said Yoo nevertheless bore responsibility for what happened in Iraq. He undermined the moral basis of the Geneva Conventions and contributed directly to "the reprehensible violations of human rights recently witnessed in Iraq and elsewhere," it said.

By late afternoon Tuesday, more than 250 students and alumni had signed it, many adding comments like this one by third-year law student Brian Guth: "I am proud to have conservative scholars at Boalt Hall, but I am saddened that one of our own deserves partial responsibility for these events."

Yoo said his e-mail from the school and community since the story broke has been mixed.

On Tuesday, a Boalt student began circulating an online counterpetition in support of academic freedom for the young professor who, in almost a decade at the school, has made his mark as an articulate conservative.

Yoo, 36, has written and been quoted on a wide range of issues. For example, he supported the Supreme Court's intervention in the case that delivered the 2000 election to President Bush, but he has written in opposition to Bush on one current hot-button issue, a proposed federal constitutional ban on gay marriage.

A graduate of Harvard and of Yale Law School, he was a law clerk for Supreme Court Justice Clarence Thomas. He joined the UC Berkeley law faculty in 1993 but left in 2001 to work in the Justice Department. He stayed there until May 2003, after the invasion of Iraq, when he became a visiting professor at the University of Chicago.

Back in Berkeley only recently, he is not considered out of place on the famously liberal campus. His law school colleagues, said one, find him "extremely cordial, even with those with whom he disagrees on politics or the law."

The professor, who asked not to be identified, characterized the faculty as more conservative than the students. And, while it's hard to gauge campus reaction with most students and many faculty away for the summer, the professor said, he predicted Yoo would easily weather the current storm.

"I don't think emotions are boiling over on this," he said.

Yoo said he has had many "very civil" conversations about the war and "no problems with anyone on the faculty."

He also said he wasn't troubled by students exercising their First Amendment right to challenge his thinking because "that's what we're supposed to be teaching them to do."

But he called the suggestion that he resign an interference with academic freedom. He likened it to asking a student to leave the school for participating in the military in what some thought was an illegal war.

The counterpetition placed in circulation Tuesday by third-year law student Nicholas Ganjei made the same point. Without endorsing Yoo or his views about treatment of prisoners, it warned that "the proposed retaliatory measures (against Yoo) would undo decades of free speech tradition at UC Berkeley, which has been a haven for both mass movements and the exposition of unpopular opinions."