Yoo Besmirches Legacy of Jefferson

Initially I
was shocked at the thought of the
University of Virginia welcoming former Justice Department lawyer John
Yoo to
the "Academical Village" founded by Thomas Jefferson.

There was
something very wrong about that
picture. Was it not Mr. Jefferson who condemned tyrannical
acts-including ones
that fell far short of waterboarding-in the Declaration of Independence?

But
I have come around to the view that Yoo's visit on Friday could present a
rich
teaching moment for those of us Virginians who believe passionately in
the
highest ideals that Mr. Jefferson articulated so eloquently.

Yoo's
visit presents a unique opportunity for my own children - four of them
UVA
alumni - to convey the essence of The University to those of our eight
grandchildren who already aspire to study there.

A
teaching moment like this does require us to look through the eyes and
the
spectacles of Mr. Jefferson and our country's other gutsy Founders who
pledged
to each other "our Lives, our Fortunes, and our sacred Honor" to rid
tyranny
from America's shores. We tend to forget that the outcome of that brazen
battle
for liberty was far from assured when that vow was attached as the
closing line
of the Declaration of Independence in July 1776.

To
King George III, the words and deeds of the Founders spelled treason,
and it
was altogether predictable that he would order his formidable army to
pursue
and hang those upstart insurgents if his troops could get hold of them.

I
will admit that I still get goose bumps reflecting on their commitment,
their
courage, and the responsibility we share as their successors.

After
eight long years of war, the insurgents led by George Washington finally
defeated the army of the English king and secured independence for the
13
colonies. Then, other Virginians, together with statesmen from sister
colonies,
succeeded in replacing one man's dictates with a Constitution that
divided
power among three co-equal branches of government and made the rule of
law
supreme.

That
is the historical background against which, 225 years later, John Yoo
and other
government lawyers of easy conscience decided they would "opinion away"
the
checks and balances etched into the Constitution by the blood of early
patriots.

Virginia
Roots

We
Virginians take understandable pride in Mr. Jefferson and the university
in
Charlottesville that he considered his signal achievement. Equally
deserving of
praise, though, are two other Virginia patriots hailing from nearer to
where I
live - George Mason of Fairfax and Patrick Henry of Hanover County.

"Of
the first order of greatness," that's the way Mr. Jefferson described
George
Mason. And small wonder. For it is largely thanks to him that all -
including
Yoo, you, and me - enjoy a constitutional right to "freedom of speech."

Together
with fellow Virginian James Madison, Mason had drafted the Constitution,
which
defined the relationships between the three branches of government. But
Mason
then shocked Madison and shattered their friendship, when Mason
announced in
1787 that he would not support ratification as the document stood.

Mason,
one of the most self-effacing persons ever to serve the American people,
put
his reasoning succinctly: "There is no Declaration of Rights."

That
being the case, it was not an option to give up. Together with Patrick
Henry,
Mason launched a relentless political campaign and in 1791 won approval
of a
Bill of Rights - the first ten amendments to the Constitution - which
immediately became a model for other countries concerned with protecting
individual freedoms.

Hence,
John Yoo's First Amendment right to speak and be heard is beyond
dispute. At
the same time, I believe we would betray the Founders, were we to leave
him
unchallenged by glossing over his gymnastic twisting of logic and law -
not
only in places like Iraq and Guantanamo, but closer to home, as well.

Sadly,
the guarantees embodied in five of those first ten amendments - and in
the
Constitution itself - have been eroded by dubious theories promoted by
Yoo,
like his concept of an all-powerful "unitary executive" who can do
whatever he
wants to anyone unlucky enough to be judged an "enemy" by the leader
during
"wartime," even an open-ended, ill-defined conflict like the "war on
terror."

Not
even the Great Writ of habeas
corpus escaped
Yoo's sophistry - the fundamental right, wrested from King John of
England in
1215, to seek judicial relief from unlawful detention. Even King George
III was
constrained by habeas corpus,
and Madison and
Mason were careful to include that basic guarantee in the Constitution
itself
(Article One, Section 9).

But
Yoo and some fellow lawyers saw the ancient legal right as impinging on
President George W. Bush's unlimited powers.

All
Powerful

After
the 9/11 attacks, Yoo propounded theories that elevated Bush beyond the
bounds
of federal or international law. As Yoo has acknowledged, his opinions
could
allow the President to crush a child's testicles to get his father to
talk, or
to willfully annihilate a village of civilians.

"Sure,"
Yoo responded when a Justice Department investigator posed the latter
hypothetical.

Many
are aware of John Yoo's role in serving up legal "justification" for
"enhanced
interrogation techniques," including the near-drowning of waterboarding.
But
fewer know that the Convening Authority for the Military Commissions at
Guantanamo, military judge Susan Crawford, has said that those
techniques meet
the "legal definition of torture."

Fewer
still seem aware of Yoo's role in the run-up to the invasion of Iraq,
when he
focused on how to avoid the constitutional requirement for a declaration
of war
by Congress and advocated views totally at variance with those he had
expressed
while working as a Congressional staffer just a few years before.

Under
Yoo's theories, "wartime president" Bush could do whatever he wanted,
even if
that meant ignoring Congress, the United Nations Charter, and the
post-World
War II Nuremberg Tribunal. Bush simply could brush aside prohibitions
against
aggressive war as he did by invading Iraq.

At
Nuremberg, chief U.S. prosecutor, Supreme Court Justice Robert H.
Jackson,
called a war of aggression "not only an international crime; it is the
supreme
international crime differing only from other war crimes in that it
contains
within itself the accumulated evil of the whole."

Nuremberg
prosecutors also didn't let off Nazi lawyers who gave Adolf Hitler
"legal
advice" on how he could violate international law. The Nazi lawyers,
too, were
prosecuted at Nuremberg, and many served long prison sentences.

And
Justice Jackson could not have been more explicit in insisting that the
Nuremberg standard must apply equally to all.

War
crimes, he said, are "crimes whether the United States does them or
whether
Germany does them, and we are not prepared to lay down a rule of
criminal
conduct against others which we would not be willing to have invoked
against
us."

Justifying
Torture

Torture,
then, can be regarded as a derivative crime-part of the "accumulated
evil"
springing from the "supreme international crime" of a war of aggression.
It is
not necessary here to describe Yoo's attempts to "justify" torture,
since that
role is detailed in the
289-page report of the Justice Department's own Office of
Professional
Responsibility.

Suffice
it to say that OPR concluded, among other things, that:

"Yoo's legal
analyses justified acts of outright torture." (p. 252)

"He
therefore committed intentional professional misconduct." (p. 254)

The
OPR report and other official documents are replete with descriptions of
the
despicable torture techniques themselves, for those with the stomach to
read
them. Sadly, they show how far we have come since Patrick Henry asserted
that
"the rack and the screw" should be left behind in the Old World.

These
days, as bald eagles ride the March winds north along the Potomac from
Mason
Neck, they carry a ghost's lament. Someone is turning over in his grave
downstream at Gunston Hall in Fairfax County. It is George Mason who is
mourning, like Rachel of old, who would not be consoled.

I
imagine that Mason's moaning will become even more pronounced as Friday
draws
near - not only because of Yoo's visit to Charlottesville, but also
because
Friday marks the seventh anniversary of the unprovoked invasion of Iraq.

It
was the bizarre opinions of Yoo and his colleagues that subverted the
intent of
Madison, Mason, and other Founders who took great pains to give the
power to
declare war to the Congress - not to the President - in the
Constitution.

Beyond
even the great principles of the American Republic, however, there is
the
question of personal decency that applies to Yoo and his visit to the
University
of Virginia. Erstwhile UVA Writer-in-Residence, William Faulkner, summed
this
up nicely, saying:

"Some things
you must always be unable to bear. Some things you must never stop
refusing to
bear. Injustice and outrage and dishonor and shame. No matter how young
you are
or how old you have got. Not for kudos and not for cash, your picture in
the
paper nor money in the bank, neither. Just refuse to bear them."

That
is why I shall join others taking part in Friday's rally starting at
2:00 p.m.
from "The Corner" of The Grounds at UVA, before Mr. Yoo speaks in Minor
Hall at
3:30.

I
view it as a mark of respect for Mr. Jefferson, who I feel certain would
want
present-day Virginians to bear witness in defense of the blessings of
liberty
that he and his contemporaries worked so hard to secure for ourselves
and our
posterity.