John Yoo is a distinguished professor at UC Berkeley, the author of two books and 75 journal articles, and now a visiting professor at Chapman’s law school. He is criticized for his work for the government in response to the Sept. 11 attacks when he was a lawyer for the Department of Justice.

The legal memorandums of Yoo and others in the Department of Justice discussed statutes restricting coercive interrogation as well as defenses one could make if prosecuted under those statutes – they presented arguments that implied that waterboarding is sometimes permissible.

If the purpose of the memorandums was to give comfort, they did not.
Just to let you know where I stand: I oppose waterboarding in all circumstances – even when used to force a terrorist to disclose where he has hidden a nuclear bomb in New York City. Professor Alan Dershowitz of Harvard Law School, who advocated the use of government-issued “torture warrants,” proposed this “ticking bomb” scenario to justify torture to prevent greater evil. I disagree with him. But I support the right of Professors Dershowitz and Yoo to present their contrary views. A few professors on the Chapman law faculty, including, oddly enough, those expressing concern about Yoo’s visit this semester, have taken the position that it would be “irresponsible” to oppose waterboarding at all times. President Barack Obama’s newly appointed head of the CIA, Leon Panetta, also suggested that “harsh interrogation” is still an option.

“If we had a ticking-bomb situation and, obviously, whatever was being used I felt was not sufficient, I would not hesitate to ... request whatever additional authority I would need,” he told the Senate Intelligence Committee at his confirmation hearing. He also said that he would create a review team to determine the techniques the CIA should use in extreme cases when it is “absolutely necessary to find out what information that individual has.”

Dennis C. Blair, the new director of national intelligence, refused to call waterboarding “torture” at his confirmation hearings.

Dawn Johnsen, the proposed nominee to head the Office of Legal Counsel where Yoo worked, was a lawyer in that office during the Clinton administration. She was asked during her confirmation hearings if she allowed rendition to Egypt while she worked in the Clinton administration, even after the CIA warned Justice Department lawyers that Egypt would torture the person transferred there. She refused to reply because, she said, her opinions are classified. She is a professor at Indiana University.

Her university appears unconcerned about what she may have authorized under the Clinton administration. I oppose rendition to countries that we believe will torture, and I am concerned by her refusal to answer. Obama can declassify what happened under Clinton, or the senators can review the material in executive session. The Obama administration thus far refuses to reveal if she was complicit in torture and rendition.

Congress has refused to enact a statute banning waterboarding. Recently, I asked Congresswoman Loretta Sanchez why. She said no one proposes such a law because it does not have the votes to pass. Unlike many people, I have read the actual legal memorandums rather than just what others say about them. Debating these issues in an intellectual environment is what the best universities offer – people learning to disagree without being disagreeable. That is the position of Harvard Law School where Professor Dershowitz teaches, UC Berkeley where Professor Yoo normally teaches and Indiana where Professor Johnsen teaches. Because of free speech, I never objected to Professor Richard Falk’s appointment – he visited Chapman’s law school last semester. He believes Israel employs “Nazi” methods to engage in “genocide.” He also wrote that the United States itself may have been “official[ly] complicit” in the Sept. 11 attacks in the preface to David Griffin’s “The New Pearl Harbor.” I do not defend his views, I find them silly at best, but I do defend his right and Professor Yoo’s right to speak.

I equally defend the free speech right of those on my own faculty who would condone waterboarding in a “ticking-bomb” scenario. The lessons of free speech must be learned and relearned every generation.