Mar 10, 2009
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
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 Guantanamo 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
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
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
Guantanamo 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"
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.
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
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
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
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.
© 2023 Salon
We've had enough. The 1% own and operate the corporate media. They are doing everything they can to defend the status quo, squash dissent and protect the wealthy and the powerful. The Common Dreams media model is different. We cover the news that matters to the 99%. Our mission? To inform. To inspire. To ignite change for the common good. How? Nonprofit. Independent. Reader-supported. Free to read. Free to republish. Free to share. With no advertising. No paywalls. No selling of your data. Thousands of small donations fund our newsroom and allow us to continue publishing. Can you chip in? We can't do it without you. Thank you.