The text of the outrageous and infamous March 2003 torture memo drafted by John Yoo, then Deputy Assistant Attorney General in the Office of Legal Counsel, are now available here (part 1) and here (part 2). This, you may recall, is the later rescinded memorandum that defined “torture” extremely narrowly, that Common Article III of the Geneva Conventions did not apply to detainees, and that the statute criminalizing torture does not apply to the military.
Yoo is thankfully out of government. But a graceful retirement from public life at Boalt Hall is, in my view, unacceptable, Yoo ought to be impeached (there is precedent for impeaching former government officials). His c.v. does not indicate whether is actually admitted to practice law in any jurisdiction, but if he is, he ought to be disbarred for serving as the President’s enabler, providing a veneer of legality for practices that any decent person, let alone any decent lawyer, had a duty to inform his client were illegal. Frankly, he ought to be prosecuted as a war criminal, especially in light of the Supreme Court’s decision in Hamdan v. Rumsfeld holding that Common Article III of the Geneva Conventions did indeed apply to detainees.
I’m not usually given to strong language, but in my opinion John Yoo will go down in history as one of the great villains of the post-9/11 world, someone who did more to discredit the United States in the eyes of the world than almost anyone else. When given an opportunity few lawyers get in their professional lives–the opportunity to take a courageous stand against an overweening client intent on an obviously illegal course of action–Yoo snapped to attention and said, “Yes, Sir!”
Your “opinion” is just that. If waterboarding, so called, some or all of those now incarcerated at Guantanamo, has the effect of saving lives of Americans or other potential victime of Al Qaeda, here or abroad—I’m all in favor.
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p>Mr. Yoo was acting as an advocate for whomever employed him. He was fulfilling his moral and ethical obligation as legal counsel.
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p>Personally, in my “opinion” half the attorneys in the ACLU should be disbarred, tarred and feathered, but who am I. It’s only an opinion.
You are not a senior official of the US Department of Justice seeking to give legal cover to the US Armed Forces so that they can torture people whome they decide might need torturing, or to the President of the United States so that he can assume the powers of a monarch.
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p>Therein lies a subtle but significant distinction between your opinion and that of Mr. Yoo.
I’ve seen pictures of people that apparently pay good money for a dominatrix to inflict pain upon them which they seemingly enjoy. Torture is an arbitray word. Waterboarding just doesn’t conjure up Spanish Inquisition in my mind.
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p>Again—I don’t care what they do to these people if they are Al Qaeda sympathizers and Mr. Yoo was fulfilling his legal obligation. If you have a problem with it, take it before the US Supreme Court. That’s why they are there.
Once again, just because somebody somewhere else might consent to something that doesn’t mean it’s legal for the police, government agents, or contractors to force the same thing on a person.
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p>As Paperwight’s Fair Shot put it:
Just because a guy in Boston gets a wicked tattoo on his arm–that doesn’t mean it wasn’t torture for Nazis to tattoo numbers on people in concentration camps.
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p>“Waterboarding just doesn’t conjure up Spanish Inquisition in my mind.” Torquemada put waterboarding in his torture manual. He called it the Water Cure.
This administration has brought disgrace and dishonor on this republic by “what they do to these people.” It has willfully abandoned any shed of moral dignity. As much as they have brutalized “these people,” they have brutalized our servicemembers who volunteered to defend our country, but instead are ordered to administer the “water cure” upon another human being.
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p>There is a word for “I don’t care what they do to these people.” The word is “evil.” By stating that you do not care what your government does to people, you are guilty, in my view, of treason against the ideals upon which this nation was founded. No person with an ounce of common human decency or Christian conscience can, at this point, honorably defend these practices.
MCRD, I find this brand of know-nothing defense of torture to be morally obtuse. But as you say, you’re entitled to hold a morally obtuse opinion. More to the point, hardly anyone of either party with real legal expertise defends the Yoo memo:
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p>1. In Hamdan, the Supreme Court repudiated Yoo’s view that the Geneva Conventions, specifying minimum standards of treatment for all detainees, do not apply;
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p>2. The DOJ itself repudiated Yoo’s memorandum;
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p>3. The DOJ’s Office of Professional Respnsibility has opened an inquiry into Yoo’s memoranda when it became known that Yoo had used a health benefits statute as the basis for his argument that waterboarding was not sufficiently grotesque to constitute torture;
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p>4. Even conservative commenters (e.g., here and here have rejected the Yoo memorandum. This is hardly surprising, as there is hardly a less conservative view, if I understand anything about American conservatism, than the view that the President has essentially unlimited “commander in chief” power to ignore statutes, to torture, or do just about anything else in prosecuting the so-called war on terror (I do think Yoo draws the line at the power of the purse, admitting that Congress can restrain the President by refusing to fund the executive. Congress has been pretty craven in all of this, but that’s for another post).
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p>MCRD, if you want to argue the technical merits of what Yoo has to say, please feel free to defend any one of his outrageous views, and I’ll do my best to respond. The point I want to make here, though, is that Yoo has basically been abandoned and repudiated by just about everyone except Boalt Hall. Yoo’s departure has, I hoped, stopped or at least slowed a dangerous movement towards unchecked, authoritarian government in the United States, but G-d help us in the event of another catastrophic terrorist attack, for surely there are plenty of other toadies in the bowels of the DOJ or in assistant professorships around the country who would be only too happy to take up the torch.
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p>TedF
Does it not seem that we repeat the past too often? As mentioned, John Yoo is just the rubber stamp for those above him. Should he be impeached or disbarred? Probably. Is he our Richard Rich? Sure.
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p>As there is so much sin going around and souls are a glut on the market, I also wish the medical doctors that participate in America’s torture chambers get sanctioned as a disgrace to their profession.
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p>Does anyone believe that the torture is for only terrorists? Time after time the reports are that innocent people are being tortured. The torture is merely practice. Practice for what? You.
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p>William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I’d cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!
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p>-Robert Bolt
I would hope that those I have hired to protect me, would put my life and safety above someone who wants to kill me.
This is a double edged sword. I am not condoning another Spanish Inquisition. On the other hand, I don’t want myself or any other person to be victimized by any religious nutcase. My health and welfare is priority number one before the health and saftey of an Al Qaeda member. I do not subscribe to reasonable doubt in this matter, a preponderance of the evidence will suffice.
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p>There is no doubt in my mind that every western nation and Israel, as well as other nations deemed “civilized” has engaged in “extra judicial interrogation”. Has this led to torture chambers in every police station and mass murder? No. It was field expedient in an emergency. The niceties of “civilization” are rendered moot. Sometimes the good guys, have to do what they have to do.
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p>You are “humanely” correct in your arguement, and I would argue that I am correct in my opinion of the greater good.
If I had the capacity and ability to engage in a mass murder of biblical proportion it is your arguement that the powers that be must what? Ask a judge for an arrest warrant, provide a lawyer prior to questioning, and then let me exercise my rights under Miranda. Then allow me the right to bail. I do not subscribe to this rationale. We now live in a world where one or a few men or women can cause death and destruction to hundreds of thousands and millions. The ball game has changed. The rights of the individual are superseded by the rights of the many to life.
There is a lot to take issue with in your comment (the efficacy of torture at obtaining useful information; the risk of a serious terrorist attack, and how we weigh it against other things).
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p>But I’ll follow your line of reasoning for a second and pose the following question.
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p>Let’s assume you’re right, and torture is permissible in our brave new world. Why, then, has President Bush been so insistent on “We don’t torture?” Why did the government keep Yoo’s memorandum secret until now? Why did you, in your earlier comment, try to argue that waterboarding is not torture? Why has Attorney General Mukasey hedged and fudged on this very point whenever he’s been called before Congress?
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p>I believe the answer is that you, and they, know that torture is categorically wrong. If the argument you are now attempting to make had merit, and torture were morally or legally acceptable, we wouldn’t see this hemming and hawing. Now, maybe there is some Machiavellian argument that suggests that the state is right to use torture when necessary but because people regard torture as immoral, the government cannot be seen to be using torture. Is this your view? And if so, why are you defending torture in a public forum rather than sticking to the view that you gave earlier, namely that waterboarding isn’t really torture at all?
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p>The bottom line, I think your view is incoherent in light of the everyday moral sense.
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p>TedF
Legal protections are not the right thing to do because they are in the Constitution and Geneva Convention; they are in those documents because they are the right thing to do. The niceties of civilization can never be rendered moot. I don’t usually do absolutes, but I do in this case.
Us getting more barbaric does not save us as a civilization (such as it is). Getting smarter and giving people what is justly and properly due them is the far wiser course of action.
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p>In the end, paranoia and self-preciousness are the core arguments for torture. And a sense that one would rather be the psychopath/prosecutor than the victim. For people without wisdom those seem obvious and unobjectionable. For the wise, they are the choice of idiots.
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p>And what happens when the President of the United States agrees with John Yoo’s “opinion” that you should be deprived of yours?
This actually is not new to me because it happens that a few weeks ago I read a book entitled “Takeover”, about the Bush-Cheney unitary executive theory. Unfortunately it was a library book which I have since returned so I do not remember either the subtitle or the author’s name. In every chapter about the war on terror or campaign in Iraq Mr. Yoo’s name came up for drafting memo after memo saying basically, the President can do whatever he wants, never mind constitutional provisions or congressional acts backing up said provisions. Mr. Yoo apparently believes that a President can conduct a war however he sees fit, period. I can’t figure out where war power comes from as it is not in the Constitution. The Constitution only says the President is to be Commander-in-Chief of the armies and navies of the United States. To me this means he can give orders specifically with regard to uniformed personnel, but that’s it. Some national constitutions have provisions for emergency rule, but ours is emphatically not one of them. Anyway, I recommend the aforementioned book for more on this topic.
to end run the Congress to engage the US in an undeclared war resulting in the deaths of 58,000 servicemen and hundreds of thousands wounded and maimed. To add insult to injury, the US Congress then aided and abetted the enemy by handicapping American servicemen in harms way by not allowing them to destroy the enemy.
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p>The previous president aided and abetted in the murder of a lawfully elected leader of a sovereign state.
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p>The War Powers Act was so structured because the President of the United States no longer had the luxury of asking Congress for anything in the event of a crisis. Assured mutual destruction offered only minutes for the president to act. That is why the “nuclear footbal” is within ten seconds of the president 24/7. Now presidents use the war Powers Act to circumvent Congress in all cases. But as we have seen over forty years, congress is afraid to order lunch without a poll. World events may not offer us the luxury to pose hypotheticals to a deliberating body. Hesitation may be catastrophic in its consequence.
…whether you are arguing for or against unilateral action on the part of the POTUS. I doubt anyone would argue he shouldn’t strike back immediately against an actual attack. However, that does not justify a systematic denial of rights and non-communication with Congress.
Congress is given the power to declare war. The Presidency is given the power to conduct war. Conduct when attacked was not spelled out in the Constitution, though raids from British ships on coastal towns and American shipping took place.
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p>I suppose there was/is an operative legal fiction of treating precipitating incidents as crimes until formal declaration(s) of war, and the police/militia power of the Presidency is the relevant power. Things got contorted during the Cold War, beginning with the undeclared war in Korea and the advent of ICBMs.
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p>For a lot of people without sense of measure and sense of what Arab militants want, there are fictions that groups like Al Qaeda are mirrors of their own paranoid-violent fantasies and suppressed guilt complexes. For people who can easily imagine nuking other people, the idea that Al Qaeda might do the same is magnetic. After all, they are Worse People Than We Are.
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p>Never mind that Al Qaeda doesn’t actually care about any inhabitants of North America but for the extent that said North Americans are actively and predicately f-ing up life and sovereignty in the Middle East. And, worse, f-ing up the Middle East for reasons that are in the great scheme of things stupid and trivial and unnecessary.
Like John Edwards, no the other one, the psychic who talks to the dead. Sometimes I get these impressions the first time I see their staff pictures. It is a feeling of evil that reaches out from the image and just grabs me.
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p>Fellow inmates of Satan’s asylum include Alberto Gonzales, Leo Strauss, Chertoff, Rice and of course Rumsfeld.
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p>And it’s only a “post 911 world” because you can’t believe people like this pushed the detonator button.
Hope you die,
Stick my finger in your eye…
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p>While Yoo, and other henchmen are safe in this country, it would be best for them not to travel abroad. Back in October Rumsfeld had to flee France as a potential war criminal. My well be that the civilized world is tired of the New World Order.
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p>The sad part of all this is the cooperation the Republicans get from the other side of the aisle. If there every was grounds for impeachment…
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p>Who said “evil in government is a bipartisan effort”?