Hey Friends-
Some of you know, some of you don't, but Amanda & I will be @ Loyola tonight (Wed, March 11th)...info below. We're primarily speaking with Loyola Service Coordinator staff & Campus Ministry interns, but would love to see any / all of you if you can make it.
Peace-
Matt
Wednesday March 11 – ‘From Loyola to the White House”
8pm,
Loyola College Alumni Matthew and Amanda Daloisio of Witness Against Torture, will speak about their journey from Loyola to the Catholic Worker to Resistance and Organizing around Guantanamo & Torture.
Published on Tuesday, March 10, 2009 by Salon.com
John Yoo is Sorry for Nothing
Sneering with contempt, the unrepentant Bush attorney has challenged "Obama's antiwar base" to read his infamous memos closely. So I did.
You have to give John Yoo credit for chutzpah. The disgraced author of the so-called torture memo was back in the news last week, when the Obama administration released [1] seven more secret opinions, all but one written in whole or in part by Yoo and fellow Office of Legal Counsel (OLC) lawyer Jay Bybee, arguing that the Bush administration had the right to override the Constitution as long as it claimed to be fighting a "war on terror." Professor Yoo, who I am embarrassed to say holds a tenured position at the law school of my alma mater, the University of California at Berkeley, was already known as the official who provided a legal fig leaf behind which the Bush administration tortured inmates at Guantánamo and Abu Ghraib. His legal misdeeds are widely known, but now they have been exposed chapter and verse. Among the new memos is one written in 2001, [2] in which Yoo and co-author Robert J. Delahunty advised the U.S. that the Posse Comitatus Act, which forbids the Army to be used for law enforcement, and the Fourth Amendment, which prohibits unreasonable searches and seizures, do not apply to domestic military operations undertaken during a "war on terror."
In other words, bye-bye, Bill of Rights. This is a prescription for a police state, where not just the police but the Army can kick your door down without a warrant or probable cause, as long as the president says he's fighting "terror." If Barack Obama had solicited such an opinion from an obliging Justice Department lawyer because he wanted to sic the
But if professor Yoo has so far mysteriously escaped the wrath of the right, he has more pressing problems. The Justice Department's ethics office is finishing a report [3] that reportedly harshly criticizes him and other Bush administration attorneys. The department's Office of Professional Responsibility (OPR) is investigating whether the advice given in the interrogation memos "was consistent with the professional standards that apply to Department of Justice attorneys." At issue is whether Yoo and other DOJ lawyers improperly told the Bush administration what it wanted to hear, instead of rendering an objective professional judgment. According to Newsweek, [4] one former Bush lawyer "said he was stunned to discover how much material the investigators had gathered, including internal e-mails and multiple drafts that allowed OPR to reconstruct how the memos were crafted."
Yoo has also been sued [5] by convicted al-Qaida conspirator Jose Padilla. The suit, brought by
So you'd think that Yoo would be keeping his head down these days, even expressing some contrition for his part in shredding the Constitution, undermining the rule of law and justifying torture. But being the primary legal enabler of the Bush administration's misdeeds means never having to say you're sorry. And last week, the unrepentant Yoo popped up [6] in that impregnable redoubt of right-wing rogues, the Wall Street Journal's Op-Ed page, to defend himself and pour contempt on his opponents.
Portraying himself as a dedicated public servant whose legal opinions were simply part of a "prudent and responsible ... careful contingency planning" for "a worst-case scenario," Yoo sarcastically writes that to judge from the media coverage of the memos, "this careful contingency planning amounted to a secret plot to overthrow the Constitution and strip Americans of their rights ... According to these critics, the overthrow of constitutional government in the United States began with a 37-page memo, confidentially issued on Oct. 23, 2001." Yoo warns that if the Obama administration fails to do the same kind of "planning" -- more to the point, if it continues to "seriously pursue" officials like him who did that "planning" -- it will endanger
Gosh, how could anyone think that an opinion voiding the Fourth Amendment might endanger the Constitution? How could anyone worry that legalizing torture might endanger human rights? Strip away Yoo's sophomoric sarcasm and his "argument" is that his legal opinions, which gave the Bush administration license to undercut some of the cornerstones of American law -- separation of powers, the forbidding of unreasonable searches and seizures, habeas corpus, the right to a fair, speedy trial, and the prohibition against using the military to enforce the law -- were merely "contingency planning."
That argument is absurd. As my Salon colleague Glenn Greenwald has pointed out, [7] Yoo's Oct. 23 memo "was the official and formal position of the
Yoo derides critics for citing one passage in his Oct. 23 memo. In the passage, he notes that the Supreme Court, in Near v. Minnesota, held that even free speech and press freedoms can be curtailed in wartime. "Our memo had nothing to do with the First Amendment," Yoo writes. "It only referred to the case to show that constitutional rights apply differently during the exigencies of warfare than during peacetime." Then, in a Rush Limbaugh-like excursus that ill befits a former high official charged with advising the
As a card-carrying member of both the antiwar and chattering classes, I take this double slap in the face personally. Yoo has thrown down a challenge, a legal version of Bush's "bring it on." If you chattering antiwar lefties read my memos, he is saying, you will be forced to recant your criticisms.
This is a peculiar challenge, considering that Yoo's memos have been completely discredited. Even the Bush administration's Office of Legal Counsel eventually repudiated all of Yoo's opinions (a fact that he somehow omitted in his Journal piece), and the legal community has overwhelmingly rejected his arguments. But to be fair to Yoo, I decided to read not just the newly released memos, but his 2003 torture memo. [9] What I discovered is that Yoo is an even more contemptible hack than I had ever imagined. As a government lawyer, Yoo was the equivalent of one of those doctors who did "research" for Hitler.
It isn't necessary to spend much time eviscerating Yoo's outrageous Oct. 23 memo authorizing military force, because the Bush administration already did that. In an Oct. 6, 2008, memo, [10] Principal Deputy Attorney General Steven Bradbury disposed of it like a man holding his nose while dropping a doggie-doo bag in the trash. "We also judge it necessary to point out that the 10/23/01 memo states several propositions that are either incorrect or highly questionable," Bradbury writes. Those "incorrect or highly questionable" propositions are pretty much Yoo's entire argument.
In his Wall Street Journal piece, Yoo attacks his critics for taking his statement that free speech rights can be abrogated in wartime out of context. But nothing in Yoo's Oct. 23 memo, or his other memos, inspires confidence that he would not be prepared come up with tortured legal arguments to abrogate free speech. The case Yoo cites, Near v.
In that infamous memo, Yoo legally redefined torture in a way that allowed the Bush administration to torture prisoners without consequences. His arguments for this redefinition are truly remarkable. They are a case study in intellectual bad faith.
The U.N. Convention Against Torture, to which the
Yoo came up with one of the most bizarre, illogical and specious arguments in the history of law. He dug up a federal statute that had absolutely nothing to do with the issue he was examining, seized upon a passing reference in that statute to "severe pain" that was not and could not possibly be interpreted to be a definition of that state, and then asserted with a straight face that this reference supported a radical redefinition of "severe pain." To compound this, he then lied about what the statute actually said.
In short, he simply made up a torture-friendly definition of "severe pain," and then found a way to justify it.
The statute Yoo cited, [13] 42 U.S.C. 1395, regulates insurance benefits under the "Medicare and Choice" plan. It defines an emergency medical condition as one "manifesting itself by acute symptoms of sufficient severity (including severe pain) that a prudent layman" could reasonably expect that without immediate medical treatment, the individual displaying those symptoms would be at serious risk of losing their health, suffering serious impairment to bodily functions, or suffering serious dysfunction of any bodily organ or part. From this bureaucratic definition of "emergency medical condition," Yoo magically derived a new, torture-friendly definition of "severe pain."
"Although these statutes address a substantially different subject from section 2340," Yoo blandly notes in a world-class understatement, "they are nonetheless helpful for understanding what constitutes severe physical pain. They treat severe pain as an indicator of ailments that are likely to result in permanent and serious physical damage in the absence of immediate medical treatment. Such damage must rise to the level of death, organ failure, or the permanent impairment of a significant body function. These statutes suggest that to constitute torture 'severe pain' must rise to a similarly high level -- the level that would ordinarily be associated with a physical condition or injury sufficiently serious that it would result in death, organ failure, or serious impairment of body functions."
Unfortunately, logic was not among the philosophy classes I took at
Not only was Yoo's argument about torture utterly absurd, he also ignored the single most important ruling about expansive presidential power in foreign affairs, the Supreme Court's landmark "steel seizure" case. As legal analyst Stephen Gillers wrote, [15] this is like "advising a client on school desegregation law and ignoring Brown v. Board of Education."
After reading the torture memo, it is simply incontestable that Yoo was either grossly incompetent, or that it was his intention to twist the law to tell the Bush administration what it wanted to hear. Most legal commentators take the latter position, noting [16] that "OLC lawyers are considered to be among the nation's best educated and smartest." Some might say that it is a distinction without a difference, arguing that intentionally twisting the law to achieve a desired outcome is prima facie evidence of incompetence. But that position exonerates compliant lawyers too easily. If ethical lapses are merely incompetence, ethics itself loses its meaning. This is the same distinction enshrined in a bedrock principle of Western law, the notion that to be guilty you must understand the difference between right and wrong.
Yoo acted throughout as a Bush team player supporting the "war on terror," not as a disinterested legal analyst. This is not entirely surprising, since he himself shared the Bush administration's worldview, in particular its adherence to the radical doctrine of the "unitary executive." Yoo expressed strong opinions on policy in both his expansive memos for the Bush administration and his other published work. As Robert Parry has noted, [17] in Yoo's 2006 book "War by Other Means," Yoo described discussions with Bush officials in which he opined on policy matters. For example, addressing Pentagon concerns that dismissing the
Yoo's ideological predisposition toward Bush administration positions may render moot the other key ethics question raised by the memos: Did the Bush administration pressure the OLC to tell it what it wanted to hear? A year ago, two congressional Democrats, Dick Durbin and Sheldon Whitehouse, called for an investigation into possible wrongdoing by the Bush Justice Department, asking whether Yoo and other lawyers were "insulated from outside pressure to reach a particular conclusion," and whether the Bush administration played any role in influencing "deliberations about the lawfulness of waterboarding." The Justice Department ethics investigation may shed more light on that. But if, as is likely, the Bush administration took care not to leave any fingerprints, that still does not exonerate Yoo or his fellow legal enablers.
Yoo's corrupt opinions are a black mark on the history of American law. They are certain to take their place with the rulings generally considered to be the worst in U.S. history: Dred Scott v. Sandford [18] (which found slavery constitutional), Plessy v. Ferguson [19] (which upheld racial segregation and the "separate but equal" doctrine), Korematsu v. United States [20] (which upheld the incarceration of 110,000 innocent Japanese-Americans during WWII) and Bush v. Gore [21] (in which right-wing justices used an absurd equal-protection argument to hand the presidency to their favored candidate).
In the end, what condemns Yoo most is his arrogant and dismissive attitude toward the law itself -- its logic, its precedents, its purpose. For Yoo, the law is simply a tool to be used to hand power to an omnipotent executive branch, and we must trust in the good faith of that executive branch to use its extra-legal powers properly. This view is the antithesis of both jurisprudence and the American system of government. The law is the last majestic bulwark against the tyranny of men. But in the hands of debased functionaries like Yoo, that great bulwark was eroded.
And yet the wreckage wrought by the Bush administration goes beyond Yoo. The just-released memos remind us of just how radical, secretive and destructive that administration was. Its misdeeds are so grave and far-reaching that they must be thoroughly investigated, and the perpetrators punished. Whether by a truth commission or criminal investigations, the dark history of the last eight years must be told.
So far, President Obama has been reluctant to call for such an investigation, saying he wants to focus on the future, not the past. But he's wrong. This is not about politics. This is about our American laws and values -- about our very identity. It would be easy to turn the page on the Bush administration, or to claim, as Yoo and his defenders try to do, that its sins should be forgiven because of 9/11. But it is precisely in a crisis when a nation shows its true mettle -- or lack thereof. To pretend that the last eight years never happened -- or to continue some of Bush's disastrous legal policies, as Obama shamefully appears to be doing -- would be to betray our nation's ideals, leave the door open to future misdeeds, and ultimately endanger our democracy itself.
We don't need revenge. We need truth.
© 2009 Salon.com
Gary Kamiya is writer at large for Salon.com [22]. Kamiya's writing has appeared in the New York Times Book Review, ArtForum, and Sports Illustrated, among many other publications.
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"The master class has always declared the wars; the subject class has always fought the battles. The master class has had all to gain and nothing to lose, while the subject class has had nothing to gain and everything to lose--especially their lives." Eugene Victor Debs
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