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John Yoo: Spearhead or Scapegoat?

Glenn Greenwald

In response to mounting criticisms of its ongoing employment of John Yoo, UC Berkeley School of Law's Dean William Orrick issued a Memorandum -- entitled "The Torture Memos and Academic Freedom" -- citing the "near absolute" values of academic freedom and tenure to explain why the law school will not dismiss Yoo nor even initiate an inquiry into whether action ought to be taken against him. There are all sorts of interesting exchanges regarding those questions -- from academics such as Berkeley Professor Brad DeLong, Marty Lederman, and Henry Farrell. The comment sections to those posts are well worth reading as well.

Some of those commentators argue -- persuasively -- that mere citation to "academic freedom" does not resolve the question, since Yoo is charged not merely with advocating repellent ideas (something that should never result in dismissal), but far beyond that, was acting as an architect of an actual torture regime. Others raise the concern that Yoo should be entitled to full due process, that all facts ought to be fully investigated and disclosed before one can determine what, if any, action is appropriate. I think all of those concerns are valid, though ultimately, what matters most is that some important American institution -- somewhere -- meaningfully demonstrate that perpetrating systematic torture and committing war crimes renders one beyond the pale in the United States. It shouldn't be up to Berkeley to enforce that precept by itself, but if no other institutions are doing so, then (after a full and careful investigation), Berkeley should.

But I want to focus on a slightly different problem -- namely, the danger of turning John Yoo into a scapegoat through unwarranted focus on him. Yoo's defense that he was merely offering legal opinions, not making any policy decisions, is absurd, since, as he surely knew at the time, the purpose of those opinions was to enable and legally authorize savage and illegal acts. But it is true that he did not act alone, or with supreme authority -- really, he lacked authority to implement any policies at all. And it's also true that he could not have accomplished anything without the highest officials in our government at least implicitly encouraging and supporting what he was doing.

In this regard, turning John Yoo into the poster child for the torture regime misses the point and relieves other, at equally deserving officials of responsibility. John Yoo was not a mastermind but a mere instrument -- a tool -- in the Bush administration's arsenal to abolish existing constraints on our treatment of detainees and to implement torture methods. These recent reports that Cheney, Rice, Ashcroft, Rumsfeld, Powell, etc. -- with the knowledge and approval of Bush -- actively "choreographed" these torture methods leave no doubt about any of that, and even before that, that was abundantly clear. Yoo was not the cause of any of this, but merely responded to instructions from the White House that he create a legal framework to enable what those officials decided they wanted to do:

Bush administration officials from Vice President Dick Cheney on down signed off on using harsh interrogation techniques against suspected terrorists after asking the Justice Department to endorse their legality, The Associated Press has learned.

Yoo wasn't opining in a vacuum. He knew that these techniques were already being used and that the highest level of our Government wanted him to create legal protections for what had happened and to enable more of what they wanted to do. He bears substantial culpability, but certainly not exclusive or even principal culpability. But beyond just that, there is something deeply misleading -- disturbingly self-justifying -- about the stampede to depict John Yoo as some kind of singular, isolated aberration. It's redolent of the scapegoating of Lynndie England and her low-level Abu Ghraib colleagues for what was official government policy. The responsibility for the torture regime does not rest with John Yoo or even just isolated Bush officials. It's far more collective than that.

As a country, we have repeatedly endorsed what John Yoo enabled. In addition to abolishing habeas corpus, the 2006 Military Commissions Act (.pdf) "insulated government officials from liability for many of the violations of the War Crimes Act they might have committed during the period prior to 2006," as Yale Law Professor Jack Balkin put it. It also vested vast discretion with the President to determine what constitutes "torture." Nonetheless, it was passed by an overwhelming Congressional majority, with substantial bipartisan support, without even a filibuster being attempted, and with the blessing of alleged "torture opponent" John McCain. It still has not been even partially repealed.

As a country, then, our democratic institutions -- without much outcry -- literally amended the War Crimes Act, retroactively, to declare that those who violated it, those who committed war crimes, would be free from investigation or prosecution. The Abu Ghraib scandal was disclosed in early 2004 and George Bush was re-elected. Accounts of systematic abuse at Guantanamo and elsewhere were known before then as well.

Directing moral outrage uniquely at John Yoo and demanding that he be removed from Berkeley, while highly understandable in one sense, poses the danger that this broader responsibility will be obscured and that real accountability need not take place. If we don't have the political will to prosecute our highest political officials for war crimes or even remove them from office -- and we unquestionably did not and do not -- how can we simultaneously insist that John Yoo is beyond the pale? For better or worse, what John Yoo did, while revolting and radical, was within what became -- and still is -- the American political mainstream in the years after the 9/11 attacks.

None of this is to oppose an investigation (a real investigation, with full due process) by Berkeley into whether Yoo should be dismissed from his position due to his active participation in war crimes and other conduct that would warrant dismissal under Berkeley's rules. But discussion of things like the "Yoo Memos" has started to have the effect of obscuring the fact that those were really "Bush Memos" and, ultimately "American Memos." Some of the particulars of the Bush administration's conduct were revealed only in the last couple of weeks, but the general contours have been known for a long time and most of the country, and almost all of its political and media establishment, acquiesced. Forming a lynch mob against John Yoo -- as though there is sudden shock at his isolated, unconscionable behavior -- shouldn't be used as a tool to bury that fact.

Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book "How Would a Patriot Act?," a critique of the Bush administration's use of executive power, released in May 2006. His second book, "A Tragic Legacy", examines the Bush legacy.


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