You have to give John Yoo credit for chutzpah. The disgraced author of the so-called torture memo was back in the news last week, when the Obama administration released seven more secret opinions, all but one written in whole or in part by Yoo and fellow Office of Legal Counsel (OLC) lawyer Jay Bybee, arguing that the Bush administration had the right to override the Constitution as long as it claimed to be fighting a "war on terror." Professor Yoo, who I am embarrassed to say holds a tenured position at the law school of my alma mater, the University of California at Berkeley, was already known as the official who provided a legal fig leaf behind which the Bush administration tortured inmates at Guantánamo and Abu Ghraib. His legal misdeeds are widely known, but now they have been exposed chapter and verse. Among the new memos is one written in 2001, in which Yoo and co-author Robert J. Delahunty advised the U.S. that the Posse Comitatus Act, which forbids the Army to be used for law enforcement, and the Fourth Amendment, which prohibits unreasonable searches and seizures, do not apply to domestic military operations undertaken during a "war on terror."
In other words, bye-bye, Bill of Rights. This is a prescription for a police state, where not just the police but the Army can kick your door down without a warrant or probable cause, as long as the president says he's fighting "terror." If Barack Obama had solicited such an opinion from an obliging Justice Department lawyer because he wanted to sic the U.S. Army on a group of domestic terrorists, the right would be screaming about jackbooted federal thugs descending from black helicopters to haul off American citizens. Strangely, no conservatives have taken to the streets to warn us of the Big Government danger posed by this radical doctrine. Perhaps they are too busy mobilizing against the unspeakable socialist menace represented by Obama's 3 percent increase in taxes on millionaires.
But if professor Yoo has so far mysteriously escaped the wrath of the right, he has more pressing problems. The Justice Department's ethics office is finishing a report that reportedly harshly criticizes him and other Bush administration attorneys. The department's Office of Professional Responsibility (OPR) is investigating whether the advice given in the interrogation memos "was consistent with the professional standards that apply to Department of Justice attorneys." At issue is whether Yoo and other DOJ lawyers improperly told the Bush administration what it wanted to hear, instead of rendering an objective professional judgment. According to Newsweek, one former Bush lawyer "said he was stunned to discover how much material the investigators had gathered, including internal e-mails and multiple drafts that allowed OPR to reconstruct how the memos were crafted."
Yoo has also been sued by convicted al-Qaida conspirator Jose Padilla. The suit, brought by Yale Law School's human rights clinic, claims that Yoo's memos helped set the Bush administration's abusive policies toward "war on terror" detainees in motion. Padilla, an American citizen, was held for more than three years in a Navy brig as an "enemy combatant" without charges being brought against him. Padilla's lawsuit, which also targets top Bush officials including Donald Rumsfeld and John Ashcroft, seeks only $1 in damages, but its discovery request resulted in the disclosure of the just-released memos.
So you'd think that Yoo would be keeping his head down these days, even expressing some contrition for his part in shredding the Constitution, undermining the rule of law and justifying torture. But being the primary legal enabler of the Bush administration's misdeeds means never having to say you're sorry. And last week, the unrepentant Yoo popped up in that impregnable redoubt of right-wing rogues, the Wall Street Journal's Op-Ed page, to defend himself and pour contempt on his opponents.
Portraying himself as a dedicated public servant whose legal opinions were simply part of a "prudent and responsible ... careful contingency planning" for "a worst-case scenario," Yoo sarcastically writes that to judge from the media coverage of the memos, "this careful contingency planning amounted to a secret plot to overthrow the Constitution and strip Americans of their rights ... According to these critics, the overthrow of constitutional government in the United States began with a 37-page memo, confidentially issued on Oct. 23, 2001." Yoo warns that if the Obama administration fails to do the same kind of "planning" -- more to the point, if it continues to "seriously pursue" officials like him who did that "planning" -- it will endanger America. Melodramatically conjuring up a Mumbai-like urban massacre, Yoo says that holding him and other Bush administration officials accountable will "restore risk aversion as the guiding principle of our counterterrorism strategy."
Gosh, how could anyone think that an opinion voiding the Fourth Amendment might endanger the Constitution? How could anyone worry that legalizing torture might endanger human rights? Strip away Yoo's sophomoric sarcasm and his "argument" is that his legal opinions, which gave the Bush administration license to undercut some of the cornerstones of American law -- separation of powers, the forbidding of unreasonable searches and seizures, habeas corpus, the right to a fair, speedy trial, and the prohibition against using the military to enforce the law -- were merely "contingency planning."
That argument is absurd. As my Salon colleague Glenn Greenwald has pointed out, Yoo's Oct. 23 memo "was the official and formal position of the U.S. Government -- at least of the omnipotent executive branch -- from the time it was issued until just several months before George W. Bush left office." To accept Yoo's soothing bromides that all he was doing was "planning," we are somehow supposed to ignore the fact that his opinions had real consequences. Under cover of those opinions, the Bush administration, without consulting with Congress, took illegal actions, including torture, warrantless wiretapping and detention without trial. Murat Kurnaz, an innocent man,who told "60 Minutes" that during his detention at Afghanistan and Guantánamo he was strung up by his arms, given electric shocks, and waterboarded, will surely be glad to hear that his legally sanctioned torture was merely part of professor Yoo's "prudent and responsible" "planning."
Yoo derides critics for citing one passage in his Oct. 23 memo. In the passage, he notes that the Supreme Court, in Near v. Minnesota, held that even free speech and press freedoms can be curtailed in wartime. "Our memo had nothing to do with the First Amendment," Yoo writes. "It only referred to the case to show that constitutional rights apply differently during the exigencies of warfare than during peacetime." Then, in a Rush Limbaugh-like excursus that ill befits a former high official charged with advising the United States government on momentous legal issues, Yoo sneers that by releasing the memos, the Obama administration "may be attempting to appease its antiwar base -- which won't bother to read the memos in full -- or trying to look good for the chattering classes."
As a card-carrying member of both the antiwar and chattering classes, I take this double slap in the face personally. Yoo has thrown down a challenge, a legal version of Bush's "bring it on." If you chattering antiwar lefties read my memos, he is saying, you will be forced to recant your criticisms.
This is a peculiar challenge, considering that Yoo's memos have been completely discredited. Even the Bush administration's Office of Legal Counsel eventually repudiated all of Yoo's opinions (a fact that he somehow omitted in his Journal piece), and the legal community has overwhelmingly rejected his arguments. But to be fair to Yoo, I decided to read not just the newly released memos, but his 2003 torture memo. What I discovered is that Yoo is an even more contemptible hack than I had ever imagined. As a government lawyer, Yoo was the equivalent of one of those doctors who did "research" for Hitler.
It isn't necessary to spend much time eviscerating Yoo's outrageous Oct. 23 memo authorizing military force, because the Bush administration already did that. In an Oct. 6, 2008, memo, Principal Deputy Attorney General Steven Bradbury disposed of it like a man holding his nose while dropping a doggie-doo bag in the trash. "We also judge it necessary to point out that the 10/23/01 memo states several propositions that are either incorrect or highly questionable," Bradbury writes. Those "incorrect or highly questionable" propositions are pretty much Yoo's entire argument.
In his Wall Street Journal piece, Yoo attacks his critics for taking his statement that free speech rights can be abrogated in wartime out of context. But nothing in Yoo's Oct. 23 memo, or his other memos, inspires confidence that he would not be prepared come up with tortured legal arguments to abrogate free speech. The case Yoo cites, Near v. Minnesota, was cited by the justices who tried to prevent the release of the Pentagon Papers on "national security" grounds. When one looks at the quality of Yoo's legal reasoning in the 2003 torture memo, it becomes obvious that no fundamental American right would be safe in his hands.
In that infamous memo, Yoo legally redefined torture in a way that allowed the Bush administration to torture prisoners without consequences. His arguments for this redefinition are truly remarkable. They are a case study in intellectual bad faith.
The U.N. Convention Against Torture, to which the U.S. is a signatory, defines torture as the infliction of "severe pain." The U.N. Convention is implemented in U.S. law (18 U.S.C. 2340). Yoo's legal task was to find legal grounds to define "severe" in such a diminished way as to allow the Bush administration to torture without fear of punishment. This was no easy task: There simply is nothing on the books to support such a redefinition. But when there's a war on terror to be fought, creative minds find a way.
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Yoo came up with one of the most bizarre, illogical and specious arguments in the history of law. He dug up a federal statute that had absolutely nothing to do with the issue he was examining, seized upon a passing reference in that statute to "severe pain" that was not and could not possibly be interpreted to be a definition of that state, and then asserted with a straight face that this reference supported a radical redefinition of "severe pain." To compound this, he then lied about what the statute actually said.
In short, he simply made up a torture-friendly definition of "severe pain," and then found a way to justify it.
The statute Yoo cited, 42 U.S.C. 1395, regulates insurance benefits under the "Medicare and Choice" plan. It defines an emergency medical condition as one "manifesting itself by acute symptoms of sufficient severity (including severe pain) that a prudent layman" could reasonably expect that without immediate medical treatment, the individual displaying those symptoms would be at serious risk of losing their health, suffering serious impairment to bodily functions, or suffering serious dysfunction of any bodily organ or part. From this bureaucratic definition of "emergency medical condition," Yoo magically derived a new, torture-friendly definition of "severe pain."
"Although these statutes address a substantially different subject from section 2340," Yoo blandly notes in a world-class understatement, "they are nonetheless helpful for understanding what constitutes severe physical pain. They treat severe pain as an indicator of ailments that are likely to result in permanent and serious physical damage in the absence of immediate medical treatment. Such damage must rise to the level of death, organ failure, or the permanent impairment of a significant body function. These statutes suggest that to constitute torture 'severe pain' must rise to a similarly high level -- the level that would ordinarily be associated with a physical condition or injury sufficiently serious that it would result in death, organ failure, or serious impairment of body functions."
Unfortunately, logic was not among the philosophy classes I took at Berkeley, so I do not know the technical term to describe this kind of spectacularly specious reasoning. It may be too absurd for even the most hairsplitting ancient Greeks, medieval schoolmen or logical positivists to have come up with a name for it. Suffice it to say that the completely irrelevant statute that Yoo found does not define "severe pain"; it defines "emergency medical condition," and merely lists severe pain as one of the possible symptoms of that condition. It therefore makes no sense to seize upon the possible negative outcomes of the emergency condition (which Yoo completely misrepresents, as the statute says nothing about death, organ failure or permanent impairment) as offering a definition of a condition that is one of its possible symptoms. As W. Bradley Wendel of Cornell Law School noted in a Northwestern University Law Review article, aptly comparing Yoo's behavior to that of the corrupt lawyers who smoothed the way for the corporate crimes of Enron and its ilk, "Imagine a definition of 'winter' as 'a season whose manifestations include snow, ice, and cold weather.' It does not follow from that definition that cold weather is weather in which there is snow -- obviously enough it can be cold outside and not snowing."
Not only was Yoo's argument about torture utterly absurd, he also ignored the single most important ruling about expansive presidential power in foreign affairs, the Supreme Court's landmark "steel seizure" case. As legal analyst Stephen Gillers wrote, this is like "advising a client on school desegregation law and ignoring Brown v. Board of Education."
After reading the torture memo, it is simply incontestable that Yoo was either grossly incompetent, or that it was his intention to twist the law to tell the Bush administration what it wanted to hear. Most legal commentators take the latter position, noting that "OLC lawyers are considered to be among the nation's best educated and smartest." Some might say that it is a distinction without a difference, arguing that intentionally twisting the law to achieve a desired outcome is prima facie evidence of incompetence. But that position exonerates compliant lawyers too easily. If ethical lapses are merely incompetence, ethics itself loses its meaning. This is the same distinction enshrined in a bedrock principle of Western law, the notion that to be guilty you must understand the difference between right and wrong.
Yoo acted throughout as a Bush team player supporting the "war on terror," not as a disinterested legal analyst. This is not entirely surprising, since he himself shared the Bush administration's worldview, in particular its adherence to the radical doctrine of the "unitary executive." Yoo expressed strong opinions on policy in both his expansive memos for the Bush administration and his other published work. As Robert Parry has noted, in Yoo's 2006 book "War by Other Means," Yoo described discussions with Bush officials in which he opined on policy matters. For example, addressing Pentagon concerns that dismissing the Geneva Conventions would put U.S. troops at risk, Yoo wrote, "It was far from obvious that following the Geneva Conventions in the war against al-Qaeda would be wise. Our policy makers had to ask whether [compliance] would yield any benefit or act as a hindrance."
Yoo's ideological predisposition toward Bush administration positions may render moot the other key ethics question raised by the memos: Did the Bush administration pressure the OLC to tell it what it wanted to hear? A year ago, two congressional Democrats, Dick Durbin and Sheldon Whitehouse, called for an investigation into possible wrongdoing by the Bush Justice Department, asking whether Yoo and other lawyers were "insulated from outside pressure to reach a particular conclusion," and whether the Bush administration played any role in influencing "deliberations about the lawfulness of waterboarding." The Justice Department ethics investigation may shed more light on that. But if, as is likely, the Bush administration took care not to leave any fingerprints, that still does not exonerate Yoo or his fellow legal enablers.
Yoo's corrupt opinions are a black mark on the history of American law. They are certain to take their place with the rulings generally considered to be the worst in U.S. history: Dred Scott v. Sandford (which found slavery constitutional), Plessy v. Ferguson (which upheld racial segregation and the "separate but equal" doctrine), Korematsu v. United States (which upheld the incarceration of 110,000 innocent Japanese-Americans during WWII) and Bush v. Gore (in which right-wing justices used an absurd equal-protection argument to hand the presidency to their favored candidate).
In the end, what condemns Yoo most is his arrogant and dismissive attitude toward the law itself -- its logic, its precedents, its purpose. For Yoo, the law is simply a tool to be used to hand power to an omnipotent executive branch, and we must trust in the good faith of that executive branch to use its extra-legal powers properly. This view is the antithesis of both jurisprudence and the American system of government. The law is the last majestic bulwark against the tyranny of men. But in the hands of debased functionaries like Yoo, that great bulwark was eroded.
And yet the wreckage wrought by the Bush administration goes beyond Yoo. The just-released memos remind us of just how radical, secretive and destructive that administration was. Its misdeeds are so grave and far-reaching that they must be thoroughly investigated, and the perpetrators punished. Whether by a truth commission or criminal investigations, the dark history of the last eight years must be told.
So far, President Obama has been reluctant to call for such an investigation, saying he wants to focus on the future, not the past. But he's wrong. This is not about politics. This is about our American laws and values -- about our very identity. It would be easy to turn the page on the Bush administration, or to claim, as Yoo and his defenders try to do, that its sins should be forgiven because of 9/11. But it is precisely in a crisis when a nation shows its true mettle -- or lack thereof. To pretend that the last eight years never happened -- or to continue some of Bush's disastrous legal policies, as Obama shamefully appears to be doing -- would be to betray our nation's ideals, leave the door open to future misdeeds, and ultimately endanger our democracy itself.
We don't need revenge. We need truth.