The
April 1 release of former Justice Department General Counsel John Yoo’s
infamous March 2003 “torture memo” has led the National Lawyers Guild
(NLG), the Center for Constitutional Rights (CCR), and a growing number
of organizations and individuals such as World Can’t Wait to demand
that Yoo be fired from his teaching position at UC Berkeley’s
prestigious Boalt Hall Law School. The call to dismiss Yoo (and for him
to be disbarred and prosecuted for war crimes) has triggered
controversy and opposition from some legal scholars and academics who
are viewing this whole matter as an attempt to fire Yoo solely for his
politically reactionary opinions, and therefore an attack on “academic
freedom.”
But the demand to fire John
Yoo is not based on his scholarship. John Yoo is a war criminal. He is
a chief architect of the U.S. policy of open, legal torture.
Yoo’s
March “03 “torture memo” advised the Pentagon that laws and treaties
forbidding torture and other forms of abuse did not apply to U.S.
interrogators because of the President’s supposed wartime powers. And
it advised the Bush regime that the Justice Department’s Office of
Legal Counsel (OLC) would not enforce U.S. criminal laws, including
federal statutes against torture, assault, maiming and stalking, in the
detention and interrogation of “unlawful” enemy combatants.
According
to Human Rights Watch, more than a hundred people have died in U.S.
detention in the so-called war on terror. It has found 11 cases where
the deaths resulted from torture, and others where torture was
connected. The award-winning documentary Taxi to the Dark Side
reveals the extent of these gruesome, chilling practices by the U.S.
that some have described as “torture on an industrial scale.” The story
is told through the account of an innocent taxi driver who was tortured
and killed in 2002 by U.S. interrogators at Bagram prison in
Afghanistan.1 Many other films and books have been bringing these war crimes to light.
John
Yoo played an active, deliberate, and leading role in making all of
this possible. As Deputy Assistant Attorney General of the Justice
Department’s OLC, Yoo wrote key memos and issued key opinions that
advised top administration officials on OLC’s interpretation of what
was, and wasn’t, legal.
Bush’s “War Council” of Lawyers
Yoo is not the only one-and specifically, not the only lawyer-in
the Bush regime guilty of war crimes. The most important legal-policy
decisions in the “war on terror” were made by a select, self-styled
“War Council.” The War Council was made up of White House Counsel
Alberto Gonzales; Yoo; David Addington, Cheney’s General Counsel; and
Jim Haynes, Rumsfeld’s General Counsel. This group of senior lawyers
believed that the biggest obstacle to freeing the Bush regime’s hands
in the wake of 911was the set of U.S. and international laws that arose
in the aftermath of Vietnam and Watergate. And they set out to create
the legal theories, and “interpretations,” to circumvent them.
John
Yoo and the other lawyers advised the Bush regime that it could ignore
not only U.S. law but international law as well. For instance, on
August 1, 2002, an opinion authored by Yoo stated the techniques used
to interrogate members of al-Qaeda did not violate the UN Convention
Against Torture, which the U.S. had ratified in 1994. And another
opinion released the same day and co-authored by Yoo contained his
infamous “re-interpretation” of what constituted torture. According to
Yoo, torture could now be narrowly defined as only “the pain associated
with serious physical injury so severe that death, organ failure or
permanent damage resulting in loss of significant body functions will
likely result.” In a public exchange with Notre Dame Professor Douglass
Cassel in 2006, Yoo told the audience there was no law preventing the
President from authorizing the crushing of the testicles of a child in
front of his father to extract information.
Yoo’s
memo was typical of a method used by Bush’s legal advisors:
reinterpreting laws to eliminate their effect or to make them serve the
needs of the Bush regime, without actually overturning them. In this
case, torture was not being approved-it was simply being “redefined.”
This enabled Bush and others to torture enemy combatants while
continuing to maintain that “We don’t torture.”
One
example of the way the War Council played its leading role: an opinion
co-authored by Yoo and issued on January 9, 2002 concluded that the
Geneva Convention (Geneva) didn’t apply to al-Qaeda or Taliban
detainees. Two weeks later, Alberto Gonzales signed a memo to Bush that
described the “war on terror” as a “new kind of war” and a “new
paradigm” that showed Geneva’s “strict limitations on questioning of
enemy prisoners” to be “obsolete” and even “quaint.” These lawyers
understood that without Geneva, the threat of domestic criminal
proceedings under the U.S. War Crimes Act would be greatly reduced.
With the legal rationale in place, Bush announced, on February 7, 2002, that none
of the detainees at Guantánamo, whether or not they were alleged to be
Taliban or al-Qaeda, could rely on any of the protections granted by
the Geneva Convention, not even what’s known as Common Article 3.2
Again employing their typical, duplicitous M.O., senior legal advisors
and various officials continued to declare that they thoroughly upheld
Geneva and the Torture Convention. They simply concluded that
“unlawful” enemy combatants, acting outside the auspices of a state,
are not covered by these Conventions” protections.
In
testimony given this May 6 before a subcommittee of the House Judiciary
Committee, law professor and National Lawyers Guild President Marjorie
Cohn showed clearly what Bush’s legal advisors were fully aware of:
that torture is banned under all circumstances and any
violation of that ban constitutes a war crime. Professor Cohn testified
that torture-just like genocide, slavery, and wars of aggression-comes
under the international legal principle of jus cogens, Latin
for “higher law” or “compelling law.” As she explained, “this means
that no country can ever pass a law that allows torture. There can be
no immunity from criminal liability for violation of a jus cogens
prohibition.” She quoted the UN Convention Against Torture: “No
exceptional circumstances whatsoever, whether a state of war or a
threat of war, internal political instability or any other public
emergency, may be invoked as a justification for torture.”
Yet
this is exactly what Yoo and the other members of the War Council
advised could be done, and what the Bush regime in turn did. Referring
to his memo of March “03 and an earlier one in August 2002, Professor
Cohn said Yoo and other lawyers from the Office of Legal Counsel “wrote
memos at the request of high-ranking government officials in order to
insulate them from future prosecution for subjecting detainees to
torture.” These torture memos opened the way for Abu Ghraib and other
crimes, and also provided legal justification for torture that had
already been going on.
In fact, there is
a “smoking gun”-an “Action Memo” dated December 2, 2002 titled
“Counter-Resistance Techniques,” drafted by the War Council’s Jim
Haynes for Rumsfeld’s approval. Author and law professor Philippe
Sands, in an interview for Democracy Now!, pointed out that Haynes relied on Yoo’s August 2002 memo in writing this Action Memo (Democracy Now!,
5/8/08). Attached to the Action Memo were 18 new, specific techniques
of interrogation that violated Geneva’s Common Article 3, including
waterboarding. All but three were okayed on the spot, and none, not
even waterboarding, was ruled out. This memo contains Rumsfeld’s
handwritten margin note: “I stand for 8-10 hours a day. Why is standing
limited to 4 hours?” In fact, forcing prisoners to stand for long
periods of time is a part of CIA-developed torture techniques.
Official logs later made public reveal that 10 days before these
methods were approved, one prisoner at Guantánamo had started
undergoing what would become 57 days of these newly “enhanced”
interrogation procedures. Many of the new procedures were already being
used systematically on “detainee 063”-otherwise known as Mohammed
al-Qahtani, alleged to be the “20th hijacker.” In a May 13, 2008 press
release, the CCR, who represented al-Qahtani, said the “approved”
torture techniques included beatings; severe sleep deprivation combined
with 20-hour interrogations for months at a time; threats against him
and his family; strip searches and body searches; sexual humiliation;
attacks by dogs; acute stress positions for hours at a time; exposure
to low temperatures and loud music for long periods of time; and more.
This means that the December 2, 2002 memo constitutes providing
after-the-fact legal cover for violations of the War Crimes Act.
And
many of these torture techniques are identical to those used at Abu
Ghraib that shocked the world when they came to light, but which U.S.
officials swore were completely unauthorized acts by “rogue elements.”
A War Criminal, Not Controversial Academic
The
demand that John Yoo be fired, disbarred, and tried as a war criminal
(along with other Bush administration lawyers and officials) has
provoked fierce controversy among some legal academics, who are
unfortunately viewing this case far too narrowly and seeing it as a
threat to tenure and academic freedom-an attempt to punish a faculty
member for his ideas, however repugnant they may be viewed. Some
opposing it have made comparisons to the unjust firing last July of
tenured Professor Ward Churchill by the University of Colorado.
But
there is no basis to compare the right-wing witch hunt that targeted
Churchill solely for his controversial statements written after 9/11
and used them to get him fired, with the call for Yoo’s ouster and
prosecution.3
The firing of Churchill is part of an intense assault on academic
freedom and critical thinking spearheaded by reactionary forces, like
David Horowitz, who are closely connected to high-level ruling class
forces. As CCR President Michael Ratner wrote in the forthcoming book The Trial of Donald Rumsfeld,
these memos authored by Yoo were not just academic exercises. “They
were written by high-level attorneys in a context where the opinions
represented the governing law and were to be employed by the President
in setting detainee policy. This was more than bad lawyering; this was
aiding and abetting their clients” violation of the law by justifying
the commission of a crime using false legal rhetoric.”
It
would be wrong to call for Yoo’s firing if he were simply a right-wing
academic who had written and voiced very reactionary and repugnant
views (in the course of academic work, or in other settings), even
endorsing torture. Someone like that should be challenged in debates,
but firing a professor for their views should be opposed. But Yoo is
not just an academic with controversial ideas. As a key member of the
Bush regime’s legal team, he was someone who was actively involved in
legalizing torture and other horrors.
Another
argument that has support is one made by Boalt Hall Dean Christopher
Edley, Jr. in his statement opposing the demand to dismiss Yoo. Dean
Edley, himself having been in and out of White House positions twice in
the past, asserts that there exists a “complex, ineffable boundary
between policymaking and law-declaring.” He argues that Yoo’s conduct
in giving legal advice was not morally equivalent to the actions of
Rumsfeld, or of the Guantánamo interrogators. Yes, says Edley, “it does
matter that Yoo was an adviser, but President Bush and his national
security appointees were the deciders.”
But
there is precedent for prosecuting lawyers who have played this kind of
advisory role in laying the legal groundwork for subsequent crimes. As
a part of the Nuremberg trials, which prosecuted Nazi leaders,
officers, and functionaries at the end of World War 2, the U.S. tried
16 German Justice Ministry lawyers for war crimes, crimes against
humanity, and membership in criminal organizations. The fact they
didn’t run the gas chambers themselves but only created the legal
framework protecting those who did could not exonerate them. (The case,
known as U.S. v. Josef Altstötter and others, better known as the “Justice Cases,” was made famous by the 1961 film Judgement at Nuremberg, a fictionalized account of the proceedings.)
Philippe Sands, in his new book Torture Team: Rumsfeld’s Memo and the Betrayal of American Values,
writes, “The charge [in the “Justice Cases”]” was that men who had been
leaders of the German legal system had “consciously and deliberately
suppressed the law” and contributed to crimes, including torture, that
“were committed in the guise of legal process.”” The prosecutor in the
case had argued that “Men of law can no more escape responsibility by
virtue of their judicial robes than the general by his uniform.”
Yet
as it stands today in this country both the “generals in their
uniforms” and the “men in their judicial robes” continue to escape
responsibility for their crimes-past, present, and in the planning. The
fact they have not yet been held accountable has nothing to do with
their culpability. The Bush regime, with its “war on terror,” has set
the U.S. on a course for greater empire which is overall setting a
framework the ruling class as a whole is locked into. Within that,
there is infighting among the rulers over how to best accomplish their
aims, and the issue of torture is a part of that.
This current ugly reality must be urgently transformed-and,
as part of this, the efforts of those who have taken up this campaign
to oust Yoo and hold the war criminals accountable must be supported
and joined. To refuse to do so-or worse, to defend or protect criminal
perpetrators and enablers like Yoo today, in the face of their towering
crimes-becomes a form of complicity. That there isn’t already a
society-wide uproar against torture is ominous-it signals the degree to
which torture has openly become legitimized and normalized-as part of
the overall move to fascist norms. The hour is very late. This really
is a time for heroes; for people in their millions to confront reality
as it is, so that it can be radically changed.
*****
Sources:
Chronicle of Higher Education blog, “Should John Yoo Be Fired?” April 17, 2008
Cohn,
Marjorie, Testimony before the Subcommittee on the Constitution, Civil
Rights and Civil Liberties House Judiciary Committee, May 6, 2008
Cohn,
Marjorie, “Center for Constitutional Rights Supports NLG Call for
Dismissal and Prosecution of John Yoo,” Common Dreams News Center,
April 17, 2008
Horton, Scott, “Which came first: memos or torture?” L.A. Times, April 21, 2008
Jaschik, Scott, “Torture or Tenure,” InsideHigherEd.com
Leiter, Brian, “”American Freedom Campaign” Organizing E-Mail-Campaign to Fire John Yoo,” leiterreports.typepad.com/blog/2008/04/american-freedo.html
Rosen, Jeffrey, “Conscience of a Conservative,”The New York Times, September 9, 2007
Sands, Philippe, Torture Team: Rumsfeld’s Memo and the Betrayal of American Values, (New York: Palgrave MacMillan, 2008)
Sands, Philippe, “The Green Light,” Vanity Fair, May 2008
Sands, Philippe, Interviewed by Scott Horton,The New Republic, April 22, 2008
Van Bergen, Jennifer, “John Yoo: The President’s Executioner,” http://jvbline.org/line/component/option,com_frontpage/Itemid,1/
FOOTNOTES:
1.
The term “dark side” refers to Vice President Dick Cheney’s statement a
week after 911 that “We also have to work, though, sort of the dark
side, if you will”it’s going to be vital for us to use any means at our
disposal, basically, to achieve our objective.”
2.
Article 3 requires that prisoners taken during armed conflict be
“treated humanely” and prohibits “violence to life and person, in
particular murder of all kinds, mutilation, cruel treatment and
torture” and “outrages upon personal dignity, in particular humiliating
and degrading treatment.”
3.
Many who followed and studied the Churchill case closely found that the
investigation into Churchill’s scholarship, the pretense for his
firing, was a complete sham. See articles in Revolution #92 and #98, available online at revcom.us, for more.