Dean Erwin Chemerinsky has suggested that John Yoo should be prosecuted for conspiring to violate the U.S. statute against torture. http://www.thenation.com/blog/192809/prosecute-john-yoo-says-law-school-dean-erwin-chemerinsky#
I applaud Dean Chemerinsky for bringing up the possibility. Actions should have consequences, and up to now the torturers have not felt any. But it seems to me whether Yoo should be prosecuted depends on the facts. If the settled law was clear that water-boarding constituted torture under the federal statute and Yoo agreed to misstate the law to give the CIA “cover” from prosecution, then the fact that Yoo was a lawyer writing an opinion should not give him immunity. But I am not sure that was the case. We should pause before setting a precedent that lawyers advising clients need to worry about criminal sanctions for controversial advice.
Even if Yoo is not criminally liable there are other ways to send a message. Most commentators seem to agree that Yoo’s memo was a shoddy piece of legal work. (It was later withdrawn by his superiors.) This would seem to warrant various actions up to disbarment by the legal profession.
Certainly we cannot keep rewarding the wrongdoers if we want the wrongdoing to stop. Dean Christopher Edley’s “first amendment ” defense of Yoo is especially weak. It may be true that Yoo has a First Amendment right to speak his mind ( if his words are not themselves a crime), but he does not have a right to be a Professor at UC Berkeley School of Law if his work does not meet high professional standards.