Revolution #130, May 25, 2008
Controversy Over Berkeley Law School’s Refusal to Fire Bush’s “Enabler”
Professor John Yoo Has Blood On His Hands!
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.
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/
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.” [back]
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.” [back]
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. [back]
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