John Yoo's Ongoing Falsehoods in Service of Limitless Government Power

One of the most reliable methods for knowing that a position is unsustainable is that its advocates must employ outright falsehoods in order to support it. In a Wall St. Journal Op-Ed today, John Yoo defends the right of the Bush administration to imprison people at Guantanamo indefinitely with no judicial review and condemns last week's Supreme Court habeas corpus ruling as "judicial imperialism of the highest order." To do so, Yoo asserts what have become the now-standard though still-blatant falsehoods on this issue.

Yoo, for instance, claims that the Supreme Court in Boumediene allows "an alien who was captured fighting against the U.S. to use our courts to challenge his detention." But huge numbers of detainees in U.S. custody weren't "captured fighting against the U.S." at all. Many were taken from their homes. Others were just snatched off the street while engaged in the most mundane activities. Still others were abducted while in airports or at work.

Sami al-Haj, the Al Jazeera camerman who was encaged at Guantanamo for years until being recently released, was simply traveling with an Al Jazeera reporter from Pakistan into Afghanistan to cover the U.S. invasion for his news network when he was stopped by a Pakistani immigration officer, turned over to the U.S., kept in an underground Afghan prison for six months, and then basically disappeared off to Guantanamo, where he remained for years, interrogated not about Al Qaeda, but largely about the operations of Al Jazeera:

Asma al-haj didnt know what had happened to her husband until late 2002, when she received a letter from him explaining that he was in Guantanamo. Around the same time, Al Jazeera issued a press release announcing that an employee was being held at the camp. The Committee to Protect Journalists wrote to former Secretary of Defense Donald Rumsfeld requesting information, but received no reply. For the next three years, little was known about the circumstances of al-Haj's detention, until early 2005 when he obtained the services of Clive Stafford Smith, a lawyer based in Britain. . . .

Al-Haj was detained at a moment when distrust of Al Jazeera was accumulating rapidly at the highest levels of the American government. Before 9/11, Al Jazeera was hailed as a rare independent voice in the Middle East. But after the attacks, while Middle East specialists in the government continued to advocate that the U.S. engage with the network, others in the administration developed an intense hostility toward it. According to numerous former senior administration officials, the major hubs of animosity were the Office of the Vice President and the Secretary of Defense, particularly the offices run by Douglas Feith, the former undersecretary of defense for policy, and Stephen Cambone, the former undersecretary of defense for intelligence.

Many of the highest-profile "War on Terror" detainees who have been held for years with no charges have been similarly "captured," while unarmed, in the most mundane of circumstances, far away from any "battlefield" -- not "captured fighting against the U.S.," as Yoo misleadingly put it today. U.S. citizen Jose Padilla, for instance, was detained at Chicago's O'Hare International Airport.

Ali Saleh Kahlah al-Marri -- the computer science graduate student at Bradley University, in the U.S. on a student visa -- was arrested at his home in Peoria, Illinois where he lived with his wife and five children, charged with credit card fraud, only to then have his trial canceled at the last minute by George Bush, who declared him an "enemy combatant" and ordered him into military custody, where he remained for years with no charges.

Canadian citizen Maher Arar was also detained at the airport -- on a stop-over at JFK Airport on his way back from a family vacation to his Ottawa home -- and then sent to Syria to be tortured for 10 months, only for it to be discovered thereafter that he was completely innocent, that U.S. officials apprehended the wrong man. German citizen Khaled El-Masri was snatched up while on vacation in Macedonia, accused of being a Terrorist, shipped around to multiple countries, denied access to the outside world, tortured by the CIA for months, only to be released once they realized it was a case of "mistaken identity." And the lead plaintiff in the Supreme Court case, Lakhdar Boumediene, was a Bosnia citizen, living in Bosnia, who was arrested by Bosnian authorities at the request of the Bush administration, investigated, and determined by the Bosnian Supreme Court to be innocent. But upon his being released, U.S. forces inside Bosnia immediately seized him and shipped him to Guantanamo.

Contrary to one of the core falsehoods spouted by people like John Yoo, a huge bulk of our "War on Terror" prisoners, including those at Guantanamo, were not "captured fighting against the U.S." at all. While supporters of unlimited executive power incessantly claim that the War on Terror can't be waged based on the premise that Terrorists are like criminals, many of the detainee apprehensions are identical to how accused criminals are captured, since -- unlike actual wars of the past -- they involve snatching people up while engaged in completely innocent activities and in civilian settings, not on battlefields while engaged in combat.

Yoo purposely uses falsehoods here because the way so many of these detainees are captured by the U.S. is what distinguishes them from detainees in past wars captured on actual battlefields. That's precisely what makes the risk of erroneous detentions (or more malignantly-motivated detentions, such as that of Sami al-Haj) so high. And it that's fact -- along with the fact that, by the administration's own claims, this is a "completely different war" that will last decades, not merely years -- that makes the very idea of empowering our Government to imprison such people indefinitely, with no real process, so dangerous and tyrannical.

The other deeply misleading claim in Yoo's Op-Ed is even more transparent. He characterizes the Court's decision as "grant[ing] captured al Qaeda terrorists the exact same rights as American citizens to a day in civilian court." What minimally self-respecting law professor would be willing to make this claim with a straight face?

The whole point of the habeas corpus right is that without a meaningful hearing, we don't know if the individuals our Government is imprisoning are really "al Qaeda terrorists" or something else. That ought to be too basic even to require pointing out. As this recent superb McClatchy article documents, scores of individuals detained at Guantanamo for years weren't "Al Qaeda terrorists" -- or any other kind of terrorists -- at all. Rather, there were at least:

dozens of men -- and, according to several officials, perhaps hundreds -- whom the U.S. has wrongfully imprisoned in Afghanistan, Cuba and elsewhere on the basis of flimsy or fabricated evidence, old personal scores or bounty payments.

McClatchy interviewed 66 released detainees, more than a dozen local officials -- primarily in Afghanistan -- and U.S. officials with intimate knowledge of the detention program. The investigation also reviewed thousands of pages of U.S. military tribunal documents and other records.

This unprecedented compilation shows that most of the 66 were low-level Taliban grunts, innocent Afghan villagers or ordinary criminals. At least seven had been working for the U.S.-backed Afghan government and had no ties to militants, according to Afghan local officials. In effect, many of the detainees posed no danger to the United States or its allies.

The investigation also found that despite the uncertainty about whom they were holding, U.S. soldiers beat and abused many prisoners.

It takes an indescribably authoritarian mind to believe that one's own Government should have the power to put people in cages for life without having to provide them any meaningful opportunity to prove that they did not do what they are accused of. And it takes a deeply dishonest advocate to claim that the Supreme Court's ruling was designed to protect "Al Qaeda terrorists" who were "captured fighting against the U.S," given that large numbers of our detainees are not "Al Qaeda terrorists" and were not "captured fighting against the U.S."

With his attack on the Supreme Court, John Yoo has proven himself -- yet again -- to be both authoritarian and incomparably dishonest. But the two glaring falsehoods in today's Op-Ed -- that habeas protections protect "Al Qaeda terrorists" and that Guantanamo detainees were captured on the battlefield -- are precisely the ones that have been used for so long to obscure the real dangers of vesting our Government with the power of lawless imprisonment.

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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