The Horror of Yoo

One news item that I wanted to touch upon, that happened just as I was getting back from vacation, was the release of the 2003 government-sanctioned torture memo written by the then Office of Legal Counsel's John Yoo, Memo: Laws Didn't Apply to Interrogators:

The memo--which was rescinded just nine months after it was issued--provides an expansive argument for nearly unfettered presidential power in a time of war, contending that numerous laws and treaties that forbid torture or cruel treatment should not apply to the interrogations of enemy combatants overseas. …

"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," Yoo wrote. "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."

Interrogators who harmed a prisoner would be protected by a "national and international version of the right to self-defense," Yoo wrote. He also articulated a definition of illegal conduct in interrogations -- that it must "shock the conscience" -- that the Bush administration advocated for years.

"Whether conduct is conscience-shocking turns in part on whether it is without any justification," Yoo wrote, explaining, for example, that it would have to be inspired by malice or sadism before it could be prosecuted.

Of course, what truly shocks the conscience is that such a view could be espoused by government officials in our country. I've written about Yoo before, see Yoo Who, who is, in my opinion, a truly dangerous individual. As though this conscience shocking revelation wasn't enough, there was also a reference in the Yoo memo to the Administration's terrorist surveillance program, noting:

''Our office recently concluded that the Fourth Amendment had no application to domestic military operations,'' the footnote states, referring to a document titled ''Authority for Use of Military Force to Combat Terrorist Activities Within the United States.''

See Memo Linked to Warrantless Surveillance.

As always, the go-to authority for analysis of the relevant legal issues is Salon's Glenn Greenwald. His insightful essay describes the harsh reality of lawlessness that has reigned during the tenure of this Administration, in John Yoo's war crimes:

As Jane Mayer reported two years ago in The New Yorker -- in which she quoted former Navy General Counsel Alberto Mora as saying that "the memo espoused an extreme and virtually unlimited theory of the extent of the President's Commander-in-Chief authority" -- it was precisely Yoo's torture-justifying theories, ultimately endorsed by Donald Rumsfeld, that were communicated to Gen. Geoffrey Miller, the commander of both Guantanamo and Abu Ghraib at the time of the most severe detainee abuses (the ones that are known).

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If writing memoranda authorizing torture -- actions which then directly lead to the systematic commission of torture -- doesn't make one a war criminal in the U.S., what does?

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That John Yoo is a full professor at one of the country's most prestigious law schools, and a welcomed expert on our newspaper's Op-Ed pages and television news programs, speaks volumes about what our country has become.

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While Yoo's specific Torture Memos were ultimately rescinded by subsequent DOJ officials -- primarily Jack Goldsmith -- the underlying theories of omnipotent executive power remain largely in place. The administration continues to embrace precisely these same theories to assert that it has the power to violate a whole array of laws -- from our nation's spying and surveillance statutes to countless Congressional oversight requirements -- and to detain even U.S. citizens, detained on American soil, as "enemy combatants." So for all of the dramatic outrage that this Yoo memo will generate for a day or so, the general framework on which it rests, despite being weakened by the Supreme Court in Hamdan, is the one under which we continue to live, without much protest or objection.

Legal Blog Watch tries to defend Yoo, saying he was merely acting in his role as advocate, John Yoo, Hired Gun :

As for what Yoo did -- well, he did what he was told. Yoo acted as a hired gun. The administration said that it wanted to use torture to interrogate suspects and Yoo found a way to make it happen. Isn't that what we often ask of our lawyers in a business context -- not to be naysayers, but to be creative and find ways to navigate around legal obstacles to push a deal through? True, the consequences of Yoo's actions are far, far worse than if, for example, a business lawyer finds a way to cram a shady deal through a legal loophole. But otherwise, I don't see much remarkable about Yoo's conduct. The DOJ isn't the first or last client to want its lawyers to act as a hired gun, and Yoo isn't the first, nor will he be the last lawyer to follow a client's marching orders.

Sure lawyers are hired guns, yes. But isn't there an ethical duty as lawyers not to advocate a position that we know is illegal or unjustified? And, Yoo was not writing a brief trying to persuade an independent body of his position, with an opportunity for another side to be heard. He was advocate as well as judge and jury. In other words, he was the last word on the position --in fact, he was the only word.

Greenwald also discusses this distinction in an Update to his original post:

Yale Law Professor Jack Balkin makes a critical point:

Lawyers can make really bad legal arguments that argue for very unjust things in perfectly legal sounding language. I hope nobody is surprised by this fact. It is very commonplace. Today we are talking about lawyers making arguments defending the legality of torture. In the past lawyers have used legal sounding arguments to defend slavery, the genocide of Native Americans, rape (both spousal and non-spousal), Jim Crow, police brutality, denials of habeas corpus, destruction or seizure of property, and compulsory sterilization. . . . .

Orin [Kerr] wants to know whether John [Yoo]'s theories are consistent with my views of the living constitution. If he wants to know as a substantive matter whether John's theories of Presidential dictatorship are consistent with the Constitution's text and underlying principles, they are not.

The fact that a lawyer does something in his capacity as a lawyer does not mean it's proper, legitimate or legal. The fact that an argument is packaged in lawyerly wrapping doesn't mean it's reasonable or offered in good faith. All sorts of lawyers -- from those representing crime families to those representing terrorists -- have been convicted of crimes because they concealed and/or promoted their clients' illegal acts. Lawyers aren't any more immune from the rule of law than anyone else.

Ultimately, the issue is not whether the Administration is above the law, it is whether it is the law, as was explored in a recent Frontline piece on Cheney, see I Am the Law. Of course, if the answer to that is in the affirmative, then we have to ask the next question: Have we reached the end of democracy? See The End is Near?.

Likewise, a reader of Talking Points Memo compared the reaction to the Administration's torture program to that experienced by his parents, who were Holocaust survivors, saying:

The question most asked them about that era was, 'how could it happen? What could have been done?

My mother's reply was that tyranny takes little steps. People get upset, and then accept it. Then another little step. A few more little steps and you have death camps.

Yoo's defense of torture is one more little step moving us away from civilization and closer to madness. Where is the outcry?

I agree with that sentiment. The tendency is to put down references to the Hitler era and Nazi-like behavior, but my own view is that vigilance is precisely is what is required. When we stop looking for those steps, we will have reached the point of being unable to say "Never Again."