A new analysis in the California Law Review, the student-run publication of the University of California at Berkeley’s law school, argues that flaws in the student editing system in that same journal paved the way for John Yoo to publish a career-launching article in 1996. The article set forth a dubious legal basis for practices like waterboarding, which Yoo later applied to U.S. policy as the Bush administration official chiefly responsible for the infamous “torture memos.”
A critical look at the article by any mainstream historian, though, would have thrown cold water on Yoo’s interpretation of the Constitution, claims Janet Cooper Alexander, a Stanford law professor and a former editor of the California Law Review. But like most such reviews, she explains, the CLR is edited and fact-checked by law students who are not expected to get extra input from established scholars on articles that deal with highly technical areas or detailed historical analysis.
As a result, Yoo’s 139-page article was published in the journal’s respected pages despite its flawed reasoning. That made a crucial difference in the aftermath of 9/11. Yoo, by then a junior Justice Department staffer, was able to present himself as one of the administration’s few experts on the constitutional limits of presidential power, thanks in part to the California Law Review article. This helped push him to the top of the Bush policymaking apparatus despite his lack of experience outside of academia, where his 1996 article received strong criticism and only tepid praise.
The Obama administration’s intervention in Libya, the killing of bin Laden, and federal wiretapping of domestic terrorism suspects have all kept the issue of executive powers in the headlines — with Yoo a much-cited contributor to the discussion.