Sunday, April 13, 2008

Here's to You, John Yoo

First, let’s get some facts straight. Attorney John Yoo was an
assistant to Attorney General John Ashcroft, working in the Office
of Legal Counsel under his boss, Jay Bybee, during George Bush's
first term. This office is supposed to advise all the departments of
government on the legality or illegality of their actions. The
attorneys work, in the final analysis, not for the President or any
of his subordinates, but for the American people. They are obliged to
render opinions that are, to put it mildly, legal, according to U.S.
and international law.

Second, let’s look at what John Yoo did and why he did it.

To begin with, he essentially argued, in a series of memos, that the
Bill of Rights to the United States Constitution has no bearing on
the President of the United States during wartime. Neither the 5th
Amendment’s due process clauses nor the 8th Amendment’s protections
against cruel and unusual punishment apply to aliens in foreign
countries, and even if they did, Yoo maintained, the President is not
bound by them. Essentially, this means that the President’s power
trumps both the Constitution and the federal statutes that constitute
U.S. Law—specifically, any that would constrain his power to find and/
or torture those he deems ‘enemies.’ This means that the President
can also thumb his nose at foreign laws and treaties, for if he
cannot be constrained by U.S. Law, he certainly cannot be constrained
by treaties with other nations, such as the Geneva Conventions, even
though normally and legally they have the force of the Constitution
itself. No matter; the President, wrote Yoo, is “free to override all
such laws and treaties at his discretion.” In sum: John Yoo argued
that the President has unlimited authority to order war crimes
against enemy combatants captured on foreign soil, so long as he
decides that such orders are necessary to the nation’s “defense.”

All this is breathtaking enough. What’s worse is that in defending
these memos, John Yoo has actually said that they confer on the
President the power, if he chooses to use it, to torture children. In
a January 2006 interview with Notre Dame professor and international
human rights scholar Doug Cassel, Yoo argued that there is no law
that could prevent the President from ordering the torture of even
the child of a suspect. Here is the conversation:

Cassel: If the President deems that he’s got to torture somebody,
including by crushing the testicles of the person’s child, there is
no law that can stop him?
Yoo: No treaty.
Cassel: Also no law by Congress. That is what you wrote in the
August 2002 memo.
Yoo: I think it depends on why the President thinks he needs to do
(see article by Philip Watts,

Of course, we can surmise, the President would always have a
“good” reason for crushing a child’s testicles.

So let’s get specific. Let’s take a look at one of the allegedly
toothless treaties that John Yoo was referring to—the 1984 Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment—which
the United States signed. Here is what it says:

“The term ‘torture’ means any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person
for such purposes as obtaining information or a confession…No
exceptional circumstances whatsoever, whether a state of war or a
threat of war, internal political stability or any other public
emergency, may be invoked as a justification of torture.” (cited by
Anthony Piel, “A Primer on the Law of Torture,”, 11/5/07)

Anyone convicted of such crimes can be punished by life imprisonment
or the death penalty. Piel goes on to say that not only is the United
States bound by this law, the President cannot grant immunity from
its provisions: “The US government crafted, promoted, adopted, signed
and ratified the 1984 Convention Against Torture, which therefore
automatically becomes the “supreme law of the land,” pursuant to the
US Constitution. No enabling legislation is required to give effect
to these basic principles of law.”

For a lawyer in the Office of Legal Counsel in the Justice
Department to argue otherwise is to essentially argue that the
President and all those under him can break the law with impunity.
But Yoo not only did this—in direct violation of his legal ethics. He
also argued for the immunity of those who followed his memos and
broke any such laws. Here is what Yoo writes in another Memo, (as
noted by Glenn Greenwald in “John Yoo’s War Crimes,” Salon, April 2,

"If a government defendant were to harm an enemy combatant during an
interrogation in a manner that might arguably violate a criminal
prohibition, he would be doing so in order to prevent further attacks
on the United States by the al Qaeda terrorist network. In that case,
we believe that he could argue that the executive branch's
constitutional authority to protect the nation from attack justified
his actions."

So there it is. Not only 'could we argue' that the President is
above all law prohibiting torture, both domestic and international,
so are those Americans (CIA agents, military police and/or
interrogators, civilian contractors) who follow his orders and
torture or abuse their captives. So are those who command them—the
generals, the admirals, the secretaries of defense and war and so on
up the chain.

This last part is really the point. We have been given the
impression, not least by Yoo himself, that he was trying to formulate
difficult policy in the critical and dangerous new conditions created
by 9/11, and that government officials were pressing him and his
office for guidance on how they should conduct interrogations, how
they should treat the dangerous “terrorists” they were capturing.
This turns out to be a smokescreen. In fact, as Scott Horton has
recently noted in “Yoo Two,” (Harper’s Magazine, April 3, 2008),
there were two series of memos, one in August 2002, and one in March
2003. The memos are similar in that they “were issued as part of an
actual plan to induce individuals to commit criminal acts by ensuring
that their crimes would never be investigated or prosecuted.” Horton
calls this effort a “criminal enterprise,” because “Under the
standards of U.S. v Altstoetter, it was reasonably foreseeable that
the issuance of these memoranda would result in serious harm,
including assault, torture, and death, to protected persons in the
custody of the United States. Accordingly, each of the actors,
including the memoranda writers, is criminally liable.”

This was the “need” to which John Yoo was responding. As a
lawyer and professor of United States law, he knew full well that
what he was advocating would make those who followed its dictates
liable to prosecution for war crimes. So did others in government,
and that was the real “crisis” at hand. Naval officers had seen what
was happening to “enemy combatants” at Guantanamo under the authority
of Yoo’s earlier memo, and had relayed it to Alberto Mora, the
general counsel for the Navy in the Pentagon. These practices, along
with other questionable techniques authorized by Donald Rumsfeld,
including waterboarding, led decent military lawyers to vehemently
protest what was going on. These were military lawyers who knew about
torture and knew about the consequences for U.S. military personnel
if it became known worldwide that the United States was engaging in
such practices. When the legal counsel at the Pentagon, William
Haynes, began wilting under enormous pressure from such lawyers, he
recommended to Defense Secretary Rumsfeld that the torture procedures
should stop. (see Horton, cited above, and Jane Mayer, “The Memo,”
New Yorker Magazine, 2/27/2006.)

Unfortunately for the military, the chicken hawks were in
charge. Rumsfeld took his case to the Office of Legal Counsel in the
Justice Department, among others. He needed legal justification for
torture, and military lawyers knew too much to give it to him. The
political hacks in the Office of Legal Counsel, John Yoo and his boss
Jay Bybee chief among them, had no such qualms. Yoo knew nothing
about the military, but he had “read lots of books.” And so he
crafted his torture-justifying memos. And those memos were relayed to
zealots like Secretary Rumsfeld and his commander at Guantanamo,
General Geoffrey Miller. Miller implemented the 'more creative'
techniques at Gitmo, was subsequently sent to Abu Ghraib to
“gitmoize” that sadly tragic place, and the rest is history
(including the death of the so-called “Ice Man” and god knows how
many more).

As Scott Horton puts it, Yoo created these memos “as a
roadmap to committing crimes and getting away with it.” The roadmap
worked. The only sad sacks punished for the scandals at Abu Ghraib
have been, as always, the underlings, the so-called “bad apples” in
an otherwise pristine barrel, Pvt. Lynndie England, Sgt. Chip
Frederick, Cpl. Charles Graner. The war criminals really responsible
for those crimes—Yoo and his boss Bybee, Donald Rumseld, Richard
Cheney and his lawyer, David Addington, Alberto Gonzalez, General
Geoffrey Miller, George Tenet and President George W. Bush, among
others—have so far gotten off scott-free.

Perhaps they are all laughing privately amongst themselves.
Then again, perhaps not. Though they may, like John Yoo (now safely,
and to my mind scandalously, welcomed back to his academic post at
Boalt School of Law, UC Berkeley) continue to defend their actions as
necessary in a time of war, perhaps they should also remember that
the conventions against torture specifically state that “no
exceptional circumstances may be invoked as a justification for
torture.” Perhaps they should also remember what Anthony Piel, cited
above, reminds us:

“…there is no statute of limitations on war crimes and crimes against

So here’s to you, John Yoo. You’ve served your masters well,
and duly collected your due. Although, it may be, you’ll yet see
another turn of the screw.

Lawrence DiStasi

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