Menus Subscribe Search

Did Shoddy Editing Enable American Torture?

• April 26, 2012 • 10:51 AM

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.

Michael Fitzgerald
Michael Fitzgerald is an associate editor at Pacific Standard. He has previously worked at The New Republic and Oxford American Magazine.

More From Michael Fitzgerald

A weekly roundup of the best of Pacific Standard and PSmag.com, delivered straight to your inbox.

Recent Posts

July 31 • 8:00 AM

Should Athletes Train Their Memories?

Sure, but it probably won’t help.


July 31 • 6:00 AM

Universal Basic Income: Something We Can All Agree on?

According to Almaz Zelleke, it’s not a crazy thought.


July 31 • 4:00 AM

Medical Dramas Produce Misinformed, Fatalistic Viewers

New research suggests TV doctor dramas leave viewers with skewed impressions of important health-related topics.


July 30 • 4:00 PM

Still the World’s Top Military Spender

Although declining in real terms, the United States’ military budget remains substantial and a huge drain on our public resources.



July 30 • 2:04 PM

The Rise of the Nuisance Flood

Minor floods are afflicting parts of Maryland nearly 10 times more often than was the case in the 1960s.


July 30 • 2:00 PM

The (Mostly Awful) Things You Learn After Investigating Unpaid Internships for a Year

Though the intern economy remains opaque, dialogue about the role of interns in the labor force—and protections they deserve—is beginning to take shape.


July 30 • 12:00 PM

Why Coffee Shortages Won’t Change the Price of Your Frappuccino

You’re so loyal to Starbucks—and the company knows it—that your daily serving of caffeine is already marked up beyond the reach of any fluctuations in supply.



July 30 • 10:00 AM

Having Difficult Conversations With Your Children

Why it’s necessary, and how to do it.


July 30 • 8:00 AM

How to Make a Convincing Sci-Fi Movie on a Tight Budget

Coherence is a good movie, and its initial shoot cost about the same amount of money as a used Prius.


July 30 • 6:00 AM

Are You Really as Happy as You Say You Are?

Researchers find a universal positivity bias in the way we talk, tweet, and write.


July 30 • 4:00 AM

The Declining Wage Gap for Gay Men

New research finds gay men in America are rapidly catching up with straight married men in terms of wages.


July 30 • 2:00 AM

LeBron James Migration: Big Chef Seeking Small Pond

The King’s return to Cleveland is a symbol for the dramatic shift in domestic as well as international migration.


July 29 • 4:00 PM

Are Children Seeking Refuge Turning More Americans Against Undocumented Immigrants?

A look at Pew Research Center survey data collected in February and July of this year.


July 29 • 2:00 PM

Under Water: The EPA’s Ongoing Struggle to Combat Pollution

Frustration and inaction color efforts to enforce the Clean Water Act.


July 29 • 12:40 PM

America’s Streams Are Awash With Pesticides Banned in Europe

You may have never heard of clothianidin, but it’s probably in your local river.


July 29 • 12:00 PM

Mining Your Genetic Data for Profit: The Dark Side of Biobanking

One woman’s personal story raises deep questions about the stark limits of current controls in a nascent industry at the very edge of the frontier of humans and technology.


July 29 • 11:23 AM

Where Should You Go to College?


July 29 • 10:29 AM

How Textbooks Have Changed the Face of War

War is more personal, less glorious, and more hellish in modern textbooks than in the past. But there’s still room for improvement.


July 29 • 10:00 AM

The Monolingual American: Why Are Those Outside of the U.S. Encouraging It?

If you are an American trying to learn German in a large German town or city, you will mostly hear English in return, even when you give sprechen your best shot.


July 29 • 8:00 AM

The Elusive Link Between Casinos and Crime

With a study of the impact of Philadelphia’s SugarHouse Casino, a heated debate gets fresh ammunition.


July 29 • 6:00 AM

What Are the Benefits of Locking Yourself in a Tank and Floating in Room-Temperature Saltwater?

After three sessions in an isolation tank, the answer’s still not quite clear.


July 29 • 4:00 AM

Harry Potter and the Battle Against Bigotry

Kids who identify with the hero of J.K. Rowling’s popular fantasy novels hold more open-minded attitudes toward immigrants and gays.


July 29 • 2:00 AM

Geographic Scale and Talent Migration: Washington, D.C.’s New Silver Line

Around the country, suburbs are fighting with the urban core over jobs and employees.


Follow us


Subscribe Now

The Rise of the Nuisance Flood

Minor floods are afflicting parts of Maryland nearly 10 times more often than was the case in the 1960s.

America’s Streams Are Awash With Pesticides Banned in Europe

You may have never heard of clothianidin, but it's probably in your local river.

How Textbooks Have Changed the Face of War

War is more personal, less glorious, and more hellish in modern textbooks than in the past. But there’s still room for improvement.

NASA Could Build Entire Spacecrafts in Space Using 3-D Printers

This year NASA will experiment with 3-D printing small objects in space. That could mark the beginning of a gravity-free manufacturing revolution.

The Most Popular Ways to Share Good and Bad Personal News

Researchers rank the popularity of all of the different methods we have for telling people about our lives, from Facebook to face-to-face.

The Big One

One in two full-time American fast-food workers' families are enrolled in public assistance programs, at a cost of $7 billion per year. July/August 2014

Copyright © 2014 by Pacific Standard and The Miller-McCune Center for Research, Media, and Public Policy. All Rights Reserved.