John Yoo's memo is the tip of an iceberg of government criminality.
Hopefully someone is keeping watch to make sure that John Yoo doesn’t leave the country, because if there’s anything akin to rule of law left here, he should be facing indictment for war crimes. There are a number of reasons why, but the crux is this: Yoo sanctioned torture.
Yoo first drew my (and presumably, the public’s) attention when he came up in a 2006 New Yorker article by Jane Mayer titled “The Memo.”
“The author of the opinion,” Mayer wrote, “was John Yoo, a young and unusually influential lawyer in the Administration.” Mayer goes on to quote former Navy General Counsel Alberto Mora, who compared the memo to Korematsu v. United States, the Supreme Court decision that upheld Japanese-American internment during World War II. “The memo espoused an extreme and virtually unlimited theory of the extent of the President’s Commander-in-Chief authority,” Mora wrote.
Now, finally, two years after the New Yorker article, and five years after the composition of the memo, the public is getting a chance to look at what exactly Yoo said. “As the result of a FOIA lawsuit the ACLU filed and then prosecuted for several years,” wrote Glenn Greenwald, who has followed the issue closely in his daily column, “numerous documents relating to the Bush administration’s torture regime ... were released yesterday.”
The memo is 81 pages long. Most of those 81 pages apparently act as camouflage for a couple of outrageous statements.
“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,” writes Yoo (emphasis added).
More to point, Yoo writes on page 74 that “the President can unilaterally order the violation of customary international law.”
Yoo’s radical theory of the “unitary Executive” gives Bush the power, without the intervention of any legislative or judicial body, to unilaterally break the law. Notre Dame law professor Doug Cassel challenged Yoo on this view in 2005. “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?” After a bit of hedging, Yoo’s response was, “I think it depends on why the President thinks he needs to do that.”
Perhaps Yoo’s actions would not amount to crimes if he was only a private citizen, writing from his tenured chair at Berkeley Law School; after all, there is free speech in this country. But Yoo did not write the opinion in that capacity. Rather, he wrote the opinion as part of what looks like a concerted program by the Executive Branch, with the goal of developing legal cover for the torture of detainees who had (and in some cases, have) never been found guilty of wrong-doing in a court of law.
On April 10, an Associated Press article revealed how concerted the program has been. The consistent spin from the Executive Branch has been that only a small number of people were involved in the decision to torture, but the article said that soon after 9/11, a group of “principals,” including Dick Cheney, John Ashcroft, Colin Powell, George Tenet, and Condoleezza Rice were in meetings. And these weren’t abstract discussions, either. According to the AP article, the group specifically authorized physical violence, sleep deprivation, and waterboarding. It strains credulity to believe that the President wasn’t also in the loop.
These are just the most recent revelations; we’ve been getting this kind of news for the past several years, and yet nothing very serious has been done about it. Jose Padilla, for instance, was held in solitary confinement for 43 months without ever being charged with a crime. According to a Democracy Now interview with Dr. Angela Hegarty, a professor of clinical psychiatry at Columbia who spent 22 hours interviewing Padilla, his mind had basically been destroyed — by constant sensory deprivation and psychologically destructive tactics like random intervals of light and darkness as well as other efforts to create an unstable environment, such as sleep deprivation, randomization of meal-times, and removal and replacement of mattresses and pillows.
When Padilla was moved from cell to cell, he was fitted with noise-cancelling headphones and blackout goggles, to make the effect complete. It’s been months and months since all this came out, and not a single person has yet been held accountable. Subpoenas have gone unanswered, documents undisclosed. Investigation has not even really started yet; probably we won’t get anywhere until the new President is installed — and if the new President is McCain, probably we won’t ever get anywhere.
We’ve been so distracted by the endless election that the reality of a renegade government populated by criminals has not been impressed upon the public in a meaningful way; election coverage gets better ratings, in any case. And of course the election is important. But voters should keep in mind that they aren’t just going to be make a choice between McCain and Obama (or possibly, Clinton). They’ll be making a choice between rooting out this criminality or having it forever buried by a McCain administration who would relish using the unconstitutional powers Bush has already claimed for himself.
Sam Jack ’11 (sjack@fas) is ready for a real investigation.