Recently, Berkeley law students sullied their own graduation day by donning red arm bands to protest a Boalt Hall law professor with whom they do not agree. The object of scorn was Professor John C. Yoo, a legal scholar known for having drafted a Bush administration memo stating that Guantanimo’s enemy combatants are not soldiers of state, and thus not covered by the auspices of the Geneva Convention.
The students argue that Yoo’s memo resulted directly in the alleged ill-treatment of Taliban and Al Qaeda prisoners in Guantanimo, as well as the prisoners who had their genitalia mocked at Abu Ghraib. No one should be overly surprised that Berkeley students are engaged in protest, for such is the rite of passage at a university known for its radicalism. But what is surprising is that the protesters in question are law students. This should give us pause, for not only have they directed their rage at one of their own faculty, but they are the next generation of attorneys, legislators, and legal scholars in America.
Instead of being torch-bearers for the rule of law, today’s law grads apparently prefer to carry the molotov cocktails of activism. Consider these passages from a petition circulating against Professor Yoo:
We believe that the actions taken by Prof. Yoo contributed directly to the reprehensible violations of human rights recently witnessed in Iraq and elsewhere.
I wonder: does anyone ever pause to reflect on what “human rights” actually are? As it stands, the term signifies some mysterious, free-floating force that accrues to one beginning at birth. Were this only so. When we begin to bandy about such vagaries, we forget about real rights—i.e. those conferred by constitutions, institutions, and the blood of soldiers. Law students want there to be human rights independent of a state that recognizes and protects them for its citizens. But such thinking confuses the Hobbesian world we live in with a pie in the sky. Berkely law students should be the first to realize this.
But this is only the beginning; the petition gets better:
By seeking to exploit and magnify any technical ambiguities in the Geneva Conventions and the laws of war, Prof. Yoo and the Bush Administration have created a climate of disdain and hostility towards international law, effectively opening the door to acts of outright torture, rape and murder that we now know were committed by United States soldiers and civilian interrogators.
Amazingly, by straightforwardly pointing out the status of terrorists under the Geneva Conventions, Professor Yoo is now accused of having a hand in the so called “abuses” at Abu Ghraib, as well as other acts of “torture, rape and murder.” Rape? Murder? I must have missed the BBC’s coverage of that part of the war.
Of course, no good petition should be without a slam against President Bush:
Such abuses, if not explicitly ordered by the Administration or military commanders, were at the very least a foreseeable consequence of crippling the protections of the Geneva Conventions in the context of the “war on terror.”
It is disconcerting - to say the least - that our future lawyers are so concerned about the human rights of terrorists and child-murderers, especially while they are conspicuously silent about other human rights abuses, such as: the beheadings of Nick Berg and Danny Pearl, the murder of innocents on 9/11 and 3/11, suicide slaughters of citizens in Iraq and Jerusalem, and countless other barbarities against people around the world. But hey—everybody needs an advocate. After all, who’s going to supply a defense for our serial rapists and murderers here at home? And who’s going to drag out appeal processes for death row inmates year after year, if not the Boalt Hall Class of 2004?
But to the matter at hand, I would like to suggest the most vociferous protesters still at Berkeley Law take a class with Professor Yoo. Maybe then, they will grasp the essence of his position, which is not in the least bit based on “ambiguities.” For now, they can get the thrust of it from the Wall Street Journal, where Professor Yoo writes:
It is important to recognize the differences between the war in Iraq and the war on terrorism. The treatment of those detained at Abu Ghraib is governed by the Geneva Conventions, which have been signed by both the U.S. and Iraq. President Bush and his commanders announced early in the conflict that the Conventions applied. Article 17 of the Third Geneva Convention, which applies to prisoners of war, clearly states: "No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever." This provision would prohibit some interrogation methods that could be used in American police stations.
I feel a certain ignominy in lecturing Berkeley law grads about such a straightforward interpretation, much less the meaning of contracts or treaties more broadly. But alas, I suppose I must: Yoo’s point is that in order for a soldier to be protected by Geneva, he has to be fighting on behalf of a state—in this case, either Iraq or the US. With any contract or treaty, two or more parties agree to certain terms of interaction, association, or behavior, such as the case may be. Since both Iraq and the US were signatories to the Geneva Convention’s rules of conduct in war, both have agreed to treat the other’s war prisoners in a certain way (namely, to play nice) in the event of conflict. In a treaty, there is the necessary element of reciprocity, i.e. “if you will, I will.” (If P, then Q… If not-P, then not necessarily Q.)
Stateless terrorists do not abide by such commitments at all, nor are they a party to them. In fact, enemy combatants don’t agree to treat prisoners well at all (tacitly or explicitly) and in fact make it a point – where possible – to kill as many people as they can. That, of course, includes the killing of innocents. Thus, they are in every sense outside the covenants of man, and are to be treated in whatever way expedience in war dictates—restricted perhaps by the virtue of decency which is not written anywhere in stone. The rhetoric of “human rights” may include useful idioms for helping to constrain excesses by vigilante soldiers and penis-pointers, but it is not the stuff of international law (such as it is). Otherwise, such platitudinous language is tool of the demagogue, not the lawyer.
One could also argue that many of the insurgents in Iraq don’t qualify for the benefits of Geneva either, as they are not being directed by the Iraqi government and their claims of allegiance to Saddam are spurious at best, given Saddam’s new home in the custody of the Coalition Authority. Many are also foreign fighters who have infiltrated Iraq from neighboring countries, and are not fighting on behalf of any state except, perhaps, the one in heaven with all the virgins. But since the administration does care about making this distinction between terrorists and other Iraqi insurgents, it can be argued that “humiliation” breaks the rules, however mildly.
Maybe the students at Berkeley Law are convinced that strict adherence to guidelines in the Geneva Convention by the US will mean that our enemies will suddenly feel they have no license to torture the people they capture. We should ask Mariane Pearl if she thinks such a rationale would save others like her husband.
Maybe the students at Berkeley Law are simply basing their protests on wishful thinking. As they say: Even if Geneva weren’t conceived to protect human rights universally and the language only applies to soldiers of state, the spirit of Geneva was to protect everyone. This may seem crystal clear in the minds of privileged kids at Berkeley Law who have neither experienced the horror of war, nor had to prevent the next suicide bombing. But to those responsible for our protection, the lines will invariably become blurred.
Sometimes the realities of a war zone can change our perspectives in ways we could never imagine here in our air-conditioned homes, offices and universities. Indeed, war can force us to let our noblest ideologies dry up, just like the blood of innocents in the streets of Baaqouba and Baghdad. Our future lawyers should think about that before they add any more ink to this petition against John C. Yoo.
…………Note: The Berkeley Law protests come at a time of criticism in Washington about other memoranda such as the following (excerpted), allegedly giving Administration officials a license to torture: “As Commander in Chief, the President has the constitutional authority to order interrogations of enemy combatants to gain intelligence information concerning the military plans of the enemy," said the memo, obtained by The Washington Post.