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John Yoo, War Criminal

April 2, 2008

Finally, the infamous John Yoo torture memo was been declassified and released. Wrapped up in legal niceties, Yoo’s philosophy boiled down to a simple point: the president can do whatever it takes to protect US security.

“Any effort by Congress to regulate the interrogation of enemy combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President….Congress can no more interfere with the President’s conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield.”

And the implication is clear:

“If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network. In that case, we believe that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.”

In other words, the protections of the law can be set aside for the most consequentialist of reasons. As Kevin Drumnotes, the power of the president in this “Yooniverse” are practically absolute” “Congress can’t bind him, treaties can’t bind him, and the courts can’t bind him. The scope of power the memos suggest is, almost literally, absolute. And since this is a war without end, the grant of power is also without end.”

Listen to Yoo in his own words, argue–  in a cold and calculating manner– that the president can legally torture children (sounds like an SNL skit? If only.)

It was this very memo that led to the abuses of Abu Ghraib and elsewhere. As is now well known, the Yoo memo was endorsed by Donald Rumsfeld and given to Geoffrey Miller before he was assigned to Iraq, and was the source of all the abuse that took place there– despite the best attempts of the administration to blame rogue elements in the military. As noted in a recent essay by Philip Gourevitch and Errol Morris in the New Yorker:

” The low-ranking reservist soldiers who took and appeared in the infamous images were singled out for opprobrium and punishment; they were represented, in government reports, in the press, and before courts-martial, as rogues who acted out of depravity. Yet the abuse of prisoners at Abu Ghraib was de facto United States policy. The authorization of torture and the decriminalization of cruel, inhuman, and degrading treatment of captives in wartime have been among the defining legacies of the current Administration; and the rules of interrogation that produced the abuses documented on the M.I. block in the fall of 2003 were the direct expression of the hostility toward international law and military doctrine that was found in the White House, the Vice-President’s office, and at the highest levels of the Justice and Defense Departments.

The Abu Ghraib rules, promulgated by Lieutenant General Ricardo Sanchez, the commander of ground forces in Iraq, elaborated on the interrogation rules for Guantánamo Bay, which had been issued by Secretary of Defense Donald Rumsfeld; they were designed to create far more license than restriction for interrogators who sought to break prisoners. The M.P.s at Abu Ghraib were enlisted as enforcers of such practices as sleep deprivation, sexual humiliation, sensory disorientation, and the imposition of physical and psychological pain. They never received a standard operating procedure to define what was required and what was allowed, but were repeatedly instructed simply to follow the guidance of Military Intelligence officers.”

And, as Glenn Greenwald notes, Yoo is complicit in war crimes. He cannot simply hide behind his academic ivory tower in sunny Berkeley. It was not merely an odious theoretical argument. Greenwald:

“John Yoo’s Memorandum, as intended, directly led to — caused — a whole series of war crimes at both Guantanamo and in Iraq. The reason such a relatively low-level DOJ official was able to issue such influential and extraordinary opinions was because he was working directly with, and at the behest of, the two most important legal officials in the administration: George Bush’s White House counsel, Alberto Gonzales, and Dick Cheney’s counsel (and current Chief of Staff) David Addington. Together, they deliberately created and authorized a regime of torture and other brutal interrogation methods that are, by all measures, very serious war crimes.”

Greenwald also notes a clear principle enunciated at the Nurenberg trials: war criminals “include not only those who directly apply the criminal violence and other forms of brutality, but also government officials who authorized it and military officials who oversaw it.” Ironically, the Bush administration argued this very point in the Hamden case when they dubbed Bin Laden’s driver a war criminal on the grounds that it is enough to be part of conspiracy to engage in war crimes. And, even more ironically, Justices Thomas and Scalia agreed. In a just world, not only John Yoo but David Addington and Alberto Gonzales would be charged with war crimes. And not only them, but Donald Rumsfeld, Richard Cheney, and George Bush.

So there we have it. The people that honest Catholics chose to defend the gospel of life turned out to be war criminals. One final point: Yoo’s position is merely an extremist version of the strong theory of executive power held by people like Samuel Alito and John Roberts (don’t fool yourself for a minute that abortion was the primary reason for picking these people). What do these justices now think of Yoo’s argument? And assuming they repudiate it, are they willing to dub him and his co-conspirators war criminals?

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33 Comments
  1. Mark DeFrancisis permalink*
    April 2, 2008 11:13 am

    “In a just war, not only John Yoo but David Addington and Alberto Gonzales would be charged with war crimes. And not only them, but Donald Rumsfeld, Richard Cheney, and George Bush.”

    Amen.

    And in a healthily functioning American government, Bush and Cheney would have been impeached a long time ago (for this and many others abuses of executive power).

  2. April 2, 2008 11:21 am

    There is no `good cause’ for torture. As a torturer, you are the first to be a victim because you lose all your humanity. You do harm to yourself in the act of harming another. If you had a good cause to begin with, it is lost when you torture another human being. When we imagine situations when torture could be justified, we jump to conclusions too quickly and too easily. Torturing someone will not always give us the result we wish for. If the prisoner in custody does not tell us the information we want it is because they don’t want their people, their fellow soldiers to be killed. They withhold information out of compassion, out of faithfulness to their cause. Sometimes they give out wrong information. And there are those who prefer to die rather than give in to the torture.

    I am absolutely against torture. It is very easy to create a pretext for why it is necessary to torture a prisoner when we have fear and anger in us. When we have compassion, we can always find another way. When you torture a living being, you die as a human being because the other person’s suffering is your own suffering. When you perform surgery on someone, you know the surgery will help him and that is why you can cut into his body. But when you cut into someone’s body and mind to get information from them, you cut into your own life, you kill yourself as a person.

    Thich Nhat Hanh on torture ( http://www.beliefnet.com/story/146/story_14636.html ) I think it says quite a bit on the problems and how and why torture gets approved (and what it does to the one who does it).

  3. April 2, 2008 11:41 am

    By “legal niceties,” I assume you mean “adherence to the rule of law?”

  4. T. Shaw permalink
    April 2, 2008 11:53 am

    Hysterical hyperbole, children!

    How many of your friends did they torture this week? Where can I buy a severed head from the US torture command?

    You missed the Constitutional issue that Mr. Yoo addressed. The pres. is CinC and congress has no authority to dictate his acts to try to defend this country (which is so evil it deserves to be attacked!!!!) as CinC. It’s called “checks and balances” and it’s worked super for about 219 years. Apparently, this is WRITTEN in (abortion or privacy is not!) the Constitution.

    Appearently, none of you professional students ever had a lawyer work for you. You tell your lawyer what you want and he gets it for you. It generally isn’t anything for him or anything he believes. That’s what lawyers do.

    But, I’ll rise to the bait. Was co-president Hillary a war criminal as she ordered Janet Reno to murder 83 American civilians (mostly women and children) in Waco, TX in 1993?

    I know! The Holy Spirit (how much is that DSL line?) told you it’s better (Divine Mercy!!) to allow 3,000 civilans to die than to pour water over a man’s face for 30 seconds. Tell Obama to come out with that line in a campaign speech. Please!!

    You declare Obama (a mass murderer of unborn babies, more so than Yoo is a war criminal) your secular savior. Such moral inconsistency astonishes.

    If you can overlook millions of murdered unborn babies, I can call Mr. Yoo a proponent of saving American civilians by making uncomfortable three mass murderers for thirty seconds each.

    It appears for you geniuses, Obama’s perfidy (killing unborn babies so as not to punish women who wouldn’t keep their knees together) is negated by his declared intention to take from the evil rich and give the money to the dem party’s dependent voters. But, Yoo is damned because you say he advocates discomfiture to save lives. That calculus doesn’t work on the planet I inhabit.

    Thank God the adults are still running this country. One of these days, if you anger me sufficiently, I’ll tell you how you could shoot women and children.

  5. Mark DeFrancisis permalink*
    April 2, 2008 11:59 am

    What planet is that, T. Shaw?

  6. Morning's Minion permalink*
    April 2, 2008 12:55 pm

    Oh, T. Shaw is just a standard Americanist who overlooks Catholic teaching when it suits. Best ignored.

  7. April 2, 2008 1:02 pm

    MM – Yep. Shaw is the very definition of ‘troll.’

  8. Third permalink
    April 2, 2008 1:36 pm

    Yoo is a war criminal for analyzing the law? Even if he his legal analysis was flawed, he made no policy decisions.
    If Yoo is a criminal so is every practicing attorney.

  9. Morning's Minion permalink*
    April 2, 2008 1:45 pm

    Third: read the post again. Read Greenwald on the legacy of Nurenberg. Read what the Bush administration wrote in Hamden, for God’s sake, and what Thomas wrote in that case.

  10. Morning's Minion permalink*
    April 2, 2008 1:49 pm

    For those who haven’t played the youtube above, it is an interview when Yoo is asked if it would be OK to “crush the testicles of a person’s child”. In a detached and clinical anwer, Yoo responds “I think it depends on why the president thinks he needs to do that”. Chilling. Hannah Arendt’s “banality of evil” in action.

  11. Mark DeFrancisis permalink*
    April 2, 2008 1:51 pm

    These ‘analyses’ are such irresponsible constructions that go against all our law stands for that his active and then passive participation in the torture matter renders him both complicit and collusive in the criminality that ensued.

  12. April 2, 2008 2:08 pm

    It strikes me as a frightening example of the kind of legal positivism that recognizes U.S. human law as the only valid source for prescribing and restricting actions. In other words, there is no appeal to natural law against positive laws (or interpretations of it) which blatantly go against basic human morality.

    In such a context, to conclude that “the commander in chief can legally do this” is in practice equivalent to the conclusion that “the commander and chief can morally do this.” It should be quite this simple: if the answer is that positive law allows our president to order the mutilation of a child’s testicles, then there is something dangerously wrong with our positive law. And, as the good Doctor says, a bad law is no law at all. And then, under no circumstances whatsoever, does it make sense to say that the president “can” do this.

    Unless Yoo follows these kind of judgments up with statements about how morally wrong it would be even if the Constitution seems to allow it, I’d have a hard time believing that his moral compass is pointing north.

    Pax Christi,

  13. Donald R. McClarey permalink
    April 2, 2008 2:40 pm

    Has anyone in this thread, besides me, actually read the memo? Judging from the comments I’d say not.

  14. April 2, 2008 2:43 pm

    One final point: Yoo’s position is merely an extremist version of the strong theory of executive power held by people like Samuel Alito and John Roberts (don’t fool yourself for a minute that abortion was the primary reason for picking these people).

    What are you talking about? Alito and Roberts haven’t said anything indicating that they have a “strong view of executive power,” and in the recent case (you can’t claim ignorance of this) that happened to involve a Texas death penalty situation, Alito and Roberts voted against Bush’s expansive claim of executive power.

  15. Morning's Minion permalink*
    April 2, 2008 3:04 pm

    X-Cathedra:

    I think that is exactly right, and it is why I fail to understand the so-called “orginalism” dressed up as legal conservatism– it is an utterly positivist approach that leaves no room for the moral law.

  16. April 2, 2008 3:21 pm

    “it is an utterly positivist approach that leaves no room for the moral law.”

    Yes, but the challenge is to get a consensus on natural law-based jurisprudence and then discover the means to effect the necessary change. Until then, the law will remain what it is.

  17. TeutonicTim permalink
    April 2, 2008 4:12 pm

    All this discussion and MM didn’t call anyone a Calvinist yet? T. Shaw, you’ve got to work harder!

  18. T. Shaw permalink
    April 2, 2008 4:18 pm

    The Constitution and the Law rule in this country not liberation theology/catholic socialist teaching nor professorial hatred of our country and its way of life. Possibly that’s how we’ve made it 219 years without thugs in hobnailed boots running the place.

    PS: I prefer jigging to trolling.

    Planet: Wall Street.

  19. Third permalink
    April 2, 2008 4:36 pm

    MM, what Yoo did was no different from what lawyers do on a daily basis. They provide their professional opinion on what the law says even if they don’t agree with the law. A pregnant woman ignorant of abortion law inquires a lawyer about her rights. If the lawyer tells her that abortion is legal, is he an aider and abettor?

    X-Cathedra:
    “if the answer is that positive law allows our president to order the mutilation of a child’s testicles, then there is something dangerously wrong with our positive law. And, as the good Doctor says, a bad law is no law at all.”

    There is no law that allows it. There is just no positive law that prohibits it (in Yoo’s opinion).

    “Unless Yoo follows these kind of judgments up with statements about how morally wrong it would be even if the Constitution seems to allow it, I’d have a hard time believing that his moral compass is pointing north.”

    I may agree if Yoo had written a personal memo. But it was a legal memo. Morality isn’t a legal argument.

  20. April 2, 2008 5:45 pm

    “The Constitution and the Law rule in this country not liberation theology/catholic socialist teaching”

    Does that hold true for abortion as well — Roe vs. Wade being the law of the land!

  21. digbydolben permalink
    April 2, 2008 7:03 pm

    On a certain day a decade or two from now, a vacationing Bush or Cheney or Rumsfeld will be apprehended in Europe and held for trial on a charge of war crimes, just as Pinochet was. Of course, this will happen AFTER the oil-economy of the United States has fallen through the floor and AFTER much of the arsenal of the U.S. military has been sold at the fire sale following the government’s bankruptcy–much the same as what happened to the former Soviet Empire, another “evil empire.”

  22. G. Alkon permalink
    April 2, 2008 10:38 pm

    Shaw is sadly making a legitimate point.

    Yoo may be abusing the constitution, but if that is so, the inherently nationalist bias of the document invites such constructions. The state, after all, must be saved, or else the constitution is null and void.

    The imperative of national security is quite real, from the perspective of U.S. law. How could it not be?

    It is no accident that the U.S. has committed several genocide-level crimes against those outside constitutional protection, against those who — by whatever logic — are deemed a threat to the existence of the state.

    Was the conversion of North Vietnam into a defoliated free-fire zone unconstitutional? Was carpet-bombing and killing 2 million Vietnamese unconstitutional?

    I’m no legal expert, but I’d bet that is a hard argument to make.

    Of course, the fact that it is constitutional does not make it right.

    But as we see from Shaw and McClarey, those who want to excuse the barbarism of Yoo can find some resources in the foundations of national law.

    It is just not a Catholic logic. It is the logic of literal, positivist nationalism.

  23. Liam permalink
    April 3, 2008 9:25 am

    What Yoo did is not quite what ordinary lawyers do in their day to day work, as it were.

    First, his clients *knew* the position was quite at odds with prior advice (which they were seeking to change) and went to great lengths to obtain a plausible-deniability legal Potemkin village. Such a village deserves all the legal respect of form over substance: none.

    Second, Yoo is not obliged to render a morally repugnant legally opinion, and had the ready option of resigning without detriment to his client.

    Bottom line: that was beyond vile.

  24. Third permalink
    April 3, 2008 12:23 pm

    Yoo’s culpability doesn’t rest with his employer’s private intentions.
    Yoo’s memo was amoral.

    I have given this topic a lot of thought and I think Yoo’s moral culpability depends on his belief, at the time, of how likely it was for his memo to be used for immoral purposes.

  25. Morning's Minion permalink*
    April 3, 2008 12:39 pm

    Third: you need to understand formal cooperation with evil. Yoo, by stating the positions he did in favor of an intrinsically evil act, was formally cooperating with evil. And– given his influence on actual policy– his proximity was close enough to charge him with war crimes.

  26. Jimmy Mac permalink
    April 3, 2008 12:48 pm

    From the Declaration of Independence:

    “That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. ……… But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

    If the Democratic Party screws up the chance to “throw off such Government …” then it will deserve the unforgiving disgust of history and the American people.

    The Congress is well on it was to already deserving such disgust for its effective cooperation with the government whose immoral actions were justified by John Yoo.

  27. Third permalink
    April 3, 2008 2:41 pm

    MM: If we take Yoo’s word that he wasn’t prejudiced, he didn’t “favor” anything. He wrote a memo on the state of the law. If, in addition, we take Yoo’s word that he didn’t know how his memo would be used, he could not have knowingly cooperated with evil.

    Having said all this, I think lawyers need to make a regular practice out of making their moral concerns known. Maybe law schools should teach moral reasoning and encourage including such arguments in memos. Maybe the government should have an “Office of Moral Counsel.”

  28. Morning's Minion permalink*
    April 3, 2008 3:12 pm

    Third: if you suppotr and lobby for an intrinsically evil act, you are cooperating formally with evil. It’s true with abortion, it’s true with torture.

    Let’s assume a lawyer in the early 1970s had written a justification for extending the right to privacy to encompass abortion, and Justice Blackmun was awayed by the argument– would you all similarly dismiss this as a mere private opinion, “amoral” even?

  29. Blackadder permalink
    April 3, 2008 4:33 pm

    I haven’t read this memo, but I read the other Yoo memo, which appears to be a shorter version of the same argument. The memo struck me as being agenda driven and employing pretty bad legal reasoning. It would be one thing if a dispassionate legal analysis led to an awful conclusion. It’s quite another when one employs every cheap trick in the book in order to reach that conclusion.

  30. April 3, 2008 5:24 pm

    MM: Again if we are to believe Yoo’s explanation, he wasn’t supporting or lobbying for anything. He was stating the law.

    In your abortion hypo, it still depends. Advocating legalization of abortion is one thing. Stating the law is another. No need to go back to the 70’s. If a client walked into your office and asked “Is aborting my unborn child legal?” would it be immoral for you to answer honestly?

  31. Morning's Minion permalink*
    April 3, 2008 7:41 pm

    That is a silly distinction, Third, one rooted in positivism. Abortion advocates also claim they are upholding the “law”. What matter is whether it is just, not simply law.

  32. Blackadder permalink
    April 3, 2008 8:15 pm

    “Abortion advocates also claim they are upholding the ‘law’.”

    The fact that abortion advocates *claim* they are upholding the law doesn’t mean that they are actually doing so.

  33. April 3, 2008 9:21 pm

    I agree with Ba’s previous post. Call me a pessimist, but I simply don’t have the kind of faith in our political figures and institutions to suppose that Yoo was sought for sober, objective, and clear legal advice on the issue and, by golly, it just so happens that his objective, unbiased, and well reasoned legal analysis results in a big thumbs up to presidential torture tactics. Sorry, just a little hard for me to buy.

    Pax Christi,

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