First, let’s get some facts straight. Attorney John Yoo was an assistant to Attorney General John Ashcroft, working in the Office of Legal Counsel under his boss, Jay Bybee, during George Bush's first term. This office is supposed to advise all the departments of government on the legality or illegality of their actions. The attorneys work, in the final analysis, not for the President or any of his subordinates, but for the American people. They are obliged to render opinions that are, to put it mildly, legal, according to U.S. and international law.
Second, let’s look at what John Yoo did and why he did it.
To begin with, he essentially argued, in a series of memos, that the Bill of Rights to the United States Constitution has no bearing on the President of the United States during wartime. Neither the 5th Amendment’s due process clauses nor the 8th Amendment’s protections against cruel and unusual punishment apply to aliens in foreign countries, and even if they did, Yoo maintained, the President is not bound by them. Essentially, this means that the President’s power trumps both the Constitution and the federal statutes that constitute U.S. Law—specifically, any that would constrain his power to find and/or torture those he deems ‘enemies.’ This means that the President can also thumb his nose at foreign laws and treaties, for if he cannot be constrained by U.S. Law, he certainly cannot be constrained by treaties with other nations, such as the Geneva Conventions, even though normally and legally they have the force of the Constitution itself. No matter; the President, wrote Yoo, is “free to override all such laws and treaties at his discretion.” In sum: John Yoo argued that the President has unlimited authority to order war crimes against enemy combatants captured on foreign soil, so long as he decides that such orders are necessary to the nation’s “defense.”
All this is breathtaking enough. What’s worse is that in defending these memos, John Yoo has actually said that they confer on the President the power, if he chooses to use it, to torture children. In a January 2006 interview with Notre Dame professor and international human rights scholar Doug Cassel, Yoo argued that there is no law that could prevent the President from ordering the torture of even the child of a suspect. Here is the conversation:
Cassel: If the President deems that he’s got to torture somebody, including by crushing the testicles of the person’s child, there is no law that can stop him?
Yoo: No treaty.
Cassel: Also no law by Congress. That is what you wrote in the August 2002 memo.
Yoo: I think it depends on why the President thinks he needs to do that.
(see article by Philip Watts, www.informationclearinghouse.info/article11488.htm.)
Of course, we can surmise, the President would always have a “good” reason for crushing a child’s testicles.
So let’s get specific. Let’s take a look at one of the allegedly toothless treaties that John Yoo was referring to—the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment—which the United States signed. Here is what it says:
“The term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining information or a confession…No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political stability or any other public emergency, may be invoked as a justification of torture.” (cited by Anthony Piel, “A Primer on the Law of Torture,” Truthout.org, 11/5/07)
Anyone convicted of such crimes can be punished by life imprisonment or the death penalty. Piel goes on to say that not only is the United States bound by this law, the President cannot grant immunity from its provisions: “The US government crafted, promoted, adopted, signed and ratified the 1984 Convention Against Torture, which therefore automatically becomes the “supreme law of the land,” pursuant to the US Constitution. No enabling legislation is required to give effect to these basic principles of law.”
For a lawyer in the Office of Legal Counsel in the Justice Department to argue otherwise is to essentially argue that the President and all those under him can break the law with impunity. But Yoo not only did this—in direct violation of his legal ethics. He also argued for the immunity of those who followed his memos and broke any such laws. Here is what Yoo writes in another Memo, (as noted by Glenn Greenwald in “John Yoo’s War Crimes,” Salon, April 2, 2008):
"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."
So there it is. Not only 'could we argue' that the President is above all law prohibiting torture, both domestic and international, so are those Americans (CIA agents, military police and/or interrogators, civilian contractors) who follow his orders and torture or abuse their captives. So are those who command them—the generals, the admirals, the secretaries of defense and war and so on up the chain.
This last part is really the point. We have been given the impression, not least by Yoo himself, that he was trying to formulate difficult policy in the critical and dangerous new conditions created by 9/11, and that government officials were pressing him and his office for guidance on how they should conduct interrogations, how they should treat the dangerous “terrorists” they were capturing. This turns out to be a smokescreen. In fact, as Scott Horton has recently noted in “Yoo Two,” (Harper’s Magazine, April 3, 2008), there were two series of memos, one in August 2002, and one in March 2003. The memos are similar in that they “were issued as part of an actual plan to induce individuals to commit criminal acts by ensuring that their crimes would never be investigated or prosecuted.” Horton calls this effort a “criminal enterprise,” because “Under the standards of U.S. v Altstoetter, it was reasonably foreseeable that the issuance of these memoranda would result in serious harm, including assault, torture, and death, to protected persons in the custody of the United States. Accordingly, each of the actors, including the memoranda writers, is criminally liable.”
This was the “need” to which John Yoo was responding. As a lawyer and professor of United States law, he knew full well that what he was advocating would make those who followed its dictates liable to prosecution for war crimes. So did others in government, and that was the real “crisis” at hand. Naval officers had seen what was happening to “enemy combatants” at Guantanamo under the authority of Yoo’s earlier memo, and had relayed it to Alberto Mora, the general counsel for the Navy in the Pentagon. These practices, along with other questionable techniques authorized by Donald Rumsfeld, including waterboarding, led decent military lawyers to vehemently protest what was going on. These were military lawyers who knew about torture and knew about the consequences for U.S. military personnel if it became known worldwide that the United States was engaging in such practices. When the legal counsel at the Pentagon, William Haynes, began wilting under enormous pressure from such lawyers, he recommended to Defense Secretary Rumsfeld that the torture procedures should stop. (see Horton, cited above, and Jane Mayer, “The Memo,” New Yorker Magazine, 2/27/2006.)
Unfortunately for the military, the chicken hawks were in charge. Rumsfeld took his case to the Office of Legal Counsel in the Justice Department, among others. He needed legal justification for torture, and military lawyers knew too much to give it to him. The political hacks in the Office of Legal Counsel, John Yoo and his boss Jay Bybee chief among them, had no such qualms. Yoo knew nothing about the military, but he had “read lots of books.” And so he crafted his torture-justifying memos. And those memos were relayed to zealots like Secretary Rumsfeld and his commander at Guantanamo, General Geoffrey Miller. Miller implemented the 'more creative' techniques at Gitmo, was subsequently sent to Abu Ghraib to “gitmoize” that sadly tragic place, and the rest is history (including the death of the so-called “Ice Man” and god knows how many more).
As Scott Horton puts it, Yoo created these memos “as a roadmap to committing crimes and getting away with it.” The roadmap worked. The only sad sacks punished for the scandals at Abu Ghraib have been, as always, the underlings, the so-called “bad apples” in an otherwise pristine barrel, Pvt. Lynndie England, Sgt. Chip Frederick, Cpl. Charles Graner. The war criminals really responsible for those crimes—Yoo and his boss Bybee, Donald Rumseld, Richard Cheney and his lawyer, David Addington, Alberto Gonzalez, General Geoffrey Miller, George Tenet and President George W. Bush, among others—have so far gotten off scott-free.
Perhaps they are all laughing privately amongst themselves. Then again, perhaps not. Though they may, like John Yoo (now safely, and to my mind scandalously, welcomed back to his academic post at Boalt School of Law, UC Berkeley) continue to defend their actions as necessary in a time of war, perhaps they should also remember that the conventions against torture specifically state that “no exceptional circumstances may be invoked as a justification for torture.” Perhaps they should also remember what Anthony Piel, cited above, reminds us:
“…there is no statute of limitations on war crimes and crimes against humanity.”
So here’s to you, John Yoo. You’ve served your masters well, and duly collected your due. Although, it may be, you’ll yet see another turn of the screw.