The Yoo Coverup

I don't think I have the stomach to try to do any serious original analysis of John Yoo's now-declassified torture memos. As usual, you can find a lot of great legal analysis at Balkinization. But Yoo aside, you need to really be staggered by the mental processes of his employer. Some subordinate shows up in your office with a memo about how it is, in fact, legal to break all kinds of laws -- specifically laws that seek to entrench a few hundred years' worth of conventional wisdom about the moral and political unacceptability of torturing people. What do you do? Fire the guy? See if you can recommend that he get counseling? Not if you're George W. Bush and Dick Cheney, if you're those guys you adopt the legal reasoning and move on to the torturing.

Except eventually it becomes clear that the torture's gotten out of hand -- it's happening to innocent people, it's spreading throughout the U.S. detention and interrogation system, it's producing all kinds of possibly spurious information, etc., so naturally you respond by classifying the whole thing and pretending that it would imperil national security for everyone to know what a bunch of sickos you are. It really makes the stomach churn.

Comments

And the thing is, for once they are probably correct that it imperils national security for everyone to know what a bunch of sickos they are.

Posted by Raging Red | April 2, 2008 1:53 PM

Not if you're George W. Bush and Dick Cheney, if you're those guys you adopt the legal reasoning and move on to the torturing.

And if you're the University of California at Berkeley, you let him educate a generation of young lawyers.

Posted by southpaw | April 2, 2008 2:00 PM

Matt,

Your rendering makes it sound like Yoo just sort of came up with this memo on his own initiative and Bush et al took it up. On the contrary, Woo was the admin's point man in the OLC from september 11th onward; and they routinely asked him to legally justify programs and practices where Congress wouldn't; and it wasn't until Jeff Goldberg came into the OLC and refused to say the Geneva conventions didn't apply to Iraqis that there was any pushback from Justice on torture.

You should watch Frontline's "Cheney's War" on this subject.

Posted by Blake Emerson | April 2, 2008 2:01 PM

I just loves me the idea that if you can get some flunky to give you cover that what you do isn't wrong.

Man, where was this notion when I was young and irresponsible?

Posted by Jeffrey Davis | April 2, 2008 2:03 PM

I really don't think the subordinate showed up in anyone's office unsolicited. It seems far more likely that the bosses asked their staff for a plausible-sounding memo justifying what they had already decided to do (or were already doing). Yoo was just the right sadistic sociopath in the right place at the right time.

Posted by badpoetry | April 2, 2008 2:04 PM

corrections:

Yoo not Woo

Cheney's Law, not Cheney's War

Posted by Blake Emerson | April 2, 2008 2:05 PM

Woo was the admin's point man in the OLC from september 11th onward

Yoo, not Woo. John Woo is quite different. (Although, who knows, maybe Broken Arrow did influence John Yoo's thinking about torture.)

Posted by Al | April 2, 2008 2:05 PM

What Blake and badpoetry said.

Yoo's a team player. He's a good movement conservative, just following orders.

Posted by Elvis Elvisberg | April 2, 2008 2:06 PM

Well, personally I think we really need to make an effort to get to the absolute bottom of this situation. We must know what *really* happened, and cut through this annoying cover up.

Now obviously, Prof. Yoo and all his former colleagues in the Bush Administration probably won't be totally candid with us, at least initially.

Fortunately, we now possess some very useful legal tools and procedures to make them spill all the beans...

I'll bet that the international television ratings for the long resulting broadcast sessions of "harsh interrogation" would be enough to put a huge dent in our troublesome trade deficit.

Posted by RKU | April 2, 2008 2:06 PM

You think that Yoo just showed up with the memo, Matt? Bush and Cheney didn't just adopt what Yoo came up with -- they asked for it in the first place. Yoo knew what they wanted, and he delivered.

Posted by KCinDC | April 2, 2008 2:08 PM

Yoo - the Wilhelm Frick of the Bush administration. Like Frick, essentially small fry and an enabler, but that didn't stop him getting the drop at Nuremburg. Here's hoping.

Posted by Estrien | April 2, 2008 2:13 PM

Yeah, second what's said above.

You forgot step 1, go to subordinate and say "gee, we really need to take the gloves off, but we sure don't want to do anything illegal. Can you take a look at this issue and see how we can be sure our interrogators won't be committing any crimes? Because we really need to be sure there's no TICKING TIME BOMB. So, you know, take a look at that and let me know."

Posted by IMU | April 2, 2008 2:14 PM

Yoo - the Wilhelm Frick of the Bush administration. Like Frick, essentially small fry and an enabler, but that didn't stop him getting the drop at Nuremburg. Here's hoping.

Posted by Estrien | April 2, 2008 2:18 PM

Unfortunately, it's easy enough to be indignant in whatever direction one likes. For example (the italic parts are my own modifications to Matt's original post),

"Some subordinate shows up in your office with a memo about how it is, in fact, moral to break all kinds of laws -- specifically laws that seek to entrench a few hundred years' worth of conventional wisdom about the moral and political unacceptability of the inherent inferiority of negroes, women, and Jews..."

It's easy enough to shy bricks at Yoo and his GOP-enabling ilk (and I certainly am opposed to the content of the memo and Yoo's position on executive power), but it'd be great to read some kind of argument that's deeper and more persuasive than the spleen-venting I've seen on the topic so far.

Posted by James Gary | April 2, 2008 2:19 PM

Why is the University of California at Berkeley employing a writer of torture justifications? Ask Dean Edley...

Posted by John Marshall | April 2, 2008 2:19 PM

Well, Matt, obviously you hate America and freedom.

-

Posted by Typical Wingnut | April 2, 2008 2:20 PM

Bush wants to trump the Constitution with his signing-order capabilities. "The President shall take care that the laws be faithfully executed" is pretty clear, but Bush thinks signing orders trumps this, and he can execute laws based on his interpretation of the laws.

This is a blatant attempt to take power from the legislative branch (or in the case of Yoo, it an example of collusion between to the two branches of government).

I'll add it to my list of "Bullshit Bush has gotten away with."

Posted by AKBY | April 2, 2008 2:28 PM

I was looking at Yoo's faculty profile out at Berklely and see that he's teaching (God help us all) Con Law. I wonder what the hell Yoo is teaching those students? When his students write their final exams, do they use Yoo reasoning on the fact patterns? Or do they deploy, you know, conventional legal reasoning? Do the gunners in the class figure that Yoo reasoning will get them the "A" -- or do they worry more about the California bar examiners and learn the real stuff? I picture them all running to those Bar Bri final exam reviews to learn "real" Con Law so that when they write their final exams they can give the "Yoo Rule" and the "Conventional Rule" just to cover their asses.

Posted by res ipsa loquitur | April 2, 2008 2:31 PM

It's easy enough to shy bricks at Yoo and his GOP-enabling ilk (and I certainly am opposed to the content of the memo and Yoo's position on executive power), but it'd be great to read some kind of argument that's deeper and more persuasive than the spleen-venting I've seen on the topic so far.

Why do wingnuts get so angry when you tell them that they can't torture people?

Posted by Sharon | April 2, 2008 2:32 PM

IIRC, Yoo got tenure prior to his fun-lovin' OLC days; and prior to Edley being Dean (not that there is someone else you should write to).

Posted by Ugh | April 2, 2008 2:33 PM

IIRC, Yoo got tenure prior to his fun-lovin' OLC days; and prior to Edley being Dean (not that there is someone else you should write to).

Posted by Ugh | April 2, 2008 2:35 PM

If any bureaucrat in the German legal system were asked to help craft the Nuremberg Laws, they faced a personal, fundamental choice which would define them: To assist evil by accepting the assignment, or resist it and refuse.

The authors of the hastily-drafted 1935 Nuremberg Laws have never been identified. Those functionaries involved -- like Yoo -- had to comprehend the practical results of what they were writing; what it would mean for individual human beings (they did know; they simply didn't care). They also knew that being involved in creating the regulations was an important assignment that would benefit their careers.

Like Yoo's colleagues, few nazis had any qualms about enabling nazi party policy with the force of the Laws -- in fact, some nazis (such as Finance Minister Hjalmar Schacht) saw the actions by which Jews in Germany were being disenfranchised as uncoordinated, sloppy; the Laws would "clarify" the situation and turn nazi party policy into the official stance of the German government. But the Germans involved chose to make no condemnation of the policies they were asked to codify.

Like them, Yoo was presented with the same choice -- assist or resist. His decision was obvious, and the results of that choice define him as person with deep moral ambivalences to the point of degeneracy.

Posted by Jemand von Niemand | April 2, 2008 2:35 PM

I was looking at Yoo's faculty profile out at Berklely and see that he's teaching (God help us all) Con Law. I wonder what the hell Yoo is teaching those students?

Yoo taught Con Law straight out of Erwin Chemerinsky's hornbook, at least when I took it from him in 2000. Not a peep of his "POTUS = king" theory, however.

Posted by Ugh | April 2, 2008 2:37 PM

Yoo is the faculty advisor for the Advanced Legal Degree program and I was constantly in fear that I would be placed in a position where I would have to refuse to shake his hand.

A good life rule: Don't shake hands with war criminals.

I loved my experience at Boalt, but they're not going to get a dime of my money until Yoo is gone. And they know it.

Posted by ethan salto | April 2, 2008 2:46 PM

Some subordinate shows up in your office with a memo about how it is, in fact, legal to break all kinds of laws -- specifically laws that seek to entrench a few hundred years' worth of conventional wisdom about the moral and political unacceptability of torturing people.

You've got this backwards. Yoo was telling them what they wanted to hear. If he wasn't willing to do so, they would have found some other DOJ underling. You make it as if Yoo was the one who convinced the Bushists to start roughing people up. Nuh-uh.

Posted by chris b. | April 2, 2008 3:23 PM

Some subordinate shows up in your office with a memo about how it is, in fact, legal to break all kinds of laws -- specifically laws that seek to entrench a few hundred years' worth of conventional wisdom about the moral and political unacceptability of torturing people.

You've got this backwards. Yoo was telling them what they wanted to hear. If he wasn't willing to do so, they would have found some other DOJ underling. You make it as if Yoo was the one who convinced the Bushists to start roughing people up. Nuh-uh.

Posted by chris b. | April 2, 2008 3:24 PM

Astonishing excerpt from the Yoo memo:

A defendant must specifically intend to cause prolonged mental harm for the defendant to have committed torture. […] The statute requires that the defendant specifically intend to inflict severe mental harm, that mental state must be present with respect to prolonged mental harm. […]A defendant could negate a showing of specific intent to cause severe mental pain or suffering by showing that he had acted in good faith that his conduct would not amount to the acts prohibited by the statute, thus, if a defendant has a good faith belief that his actions will not•result in prolonged mental harm, he lacks the mental state necessary for his actions to constitute torture.

In other words, if the guy committing the torture didn’t think he was committing “prolonged mental harm” to the person he was interrogating, then said guy *can’t* be found guilty of torture.

You’ve gotta love the footnote on the very first page of the memo: By delimiting the legal boundaries applicable to interrogations, we of course do not express or imply any views concerning whether and when legally-permissible means of interrogation should be employed. That is a policy judgment for those conducting and directing the interrogations.

Yeah, right. But we’ll tell you how you can bend the Constitution to avoid being prosecuted for torture.

WTF?

Posted by AKBY | April 2, 2008 3:28 PM

I'm glad I finished law school before such worthies as Yoo came aboard. BTW, where is Oberleutnant Ford is this thread?

Posted by Henderstock | April 2, 2008 3:45 PM

Actually, I'm far more sickened by the argument that nations can invade nations pre-emptively on weak or manufactured 'evidence', kill hundreds of thousands of people, leave a million wounded, two million displaced, and act like bunker busters, fragmentation bombs, white phosphorous, etc are not themselves items of torture ad legally sanctioned murder.

The thin veneer of legality on that may not be as thin as Yoo's legal cover because, yanno, national governments put their heads together and make up rules.

But what is legal to the rational mind is illegal to the balanced and healthy conscience. People who surrender that lose the fight that matters most: our claim to civility.

Posted by Kevin Hayden | April 2, 2008 3:48 PM

I really hope that the day comes when Yoo, Bush & co. are tried for their criminal behavior. Unfortunately I doubt it will ever happen -- the political class are all too happy to protect their own, regardless of ideology.

Posted by Ted T. | April 2, 2008 4:12 PM

correction:

Jeff Goldberg=Jack Goldsmith

Posted by Blake Emerson | April 2, 2008 4:34 PM

What bothers me most about this Yoo coverup is that the media is not going to hound him nor play his treasonous acts over and over.

No one is going to Berkley and make Yoos life uncomfortable for how he used his legal skills to dismantle hundreds of years of American foreign policy and global standing,

Nope they would rather hunt down a decorated US Marine who engaged in dissent from the pulpit of his church.
Rev Wright earned the nations hate not Yoo.

Yet it is Yoo who defiled American principles of democracy and freedom.

The moral injustice of America reigns down only on it's weakest and politically powerless citizens.

The Yoos of the world continue to go abouttheir lives teaching at our most prestigious institutions and continuing to shape some of the foremost legal minds in the country.

When will America learn?

Posted by vicissitudes | April 2, 2008 4:52 PM

What Kevin Hayden said - there seems to be an underlying assumption made even by some anti-war people that killing and maiming a whole bunch of people for no good reason is somewhat acceptable, because, hey, it's war and that's what people do in wars, so even if I'm personally against the war, that's nothing out of the ordinary really. But when it comes to torture, all hell breaks loose, we suddenly cease to be civilized people and it's the greatest crime imaginable, never mind all the dead bodies lying around.

N.B. I am against both illegal wars and torture.

Posted by novakant | April 2, 2008 4:57 PM

The humdrum of the last two paragraphs of the Yoo memo are actually quite enlightening:

Finally, even if the criminal prohibitions outlined above applied, and an interrogation method might violate those prohibitions, necessity or self-defense could provide justifications for any criminal liability.

Please let us know if we can be of further assistance.

~John Woo

Posted by AKBY | April 2, 2008 5:39 PM

Perhaps it's getting annoying, but I just can't believe the information contained in this memo.

This is really extradionary:

"Any construction of criminal laws that regulated the President's authority as Commander in Chief to determine the interrogation and treatment of enemy combatants would raise serious constitutional questions whether Congress had intruded on the President's constitutional authority. Moreover, we do not believe that Congress enacted general criminal provisions such as the prohibitions against assault, maimmg, interstate stalking, and torture pursuant to any express authority that would allow it to infringe on the President's constitutional control over the operation of the Anned Forces in wartime. In our view, Congress may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield."

Posted by AKBY | April 2, 2008 6:46 PM

Though I certainly would consider myself against torture, I share novakant's confusion over the distinction between the acceptance of the utilitarian calculations that underlie just war theory--such as proportionality which allows for the intended killing of civilians in certain cases--and why this same rationale is not accepted for torture.

Now torture may be an ineffective means of interrogation and that is certainly a valid argument against it, but it doesn't provide a unique moral argument that distinquishes torture from acts of war that kill civilians.

Posted by a drop in a large bucket | April 2, 2008 7:06 PM

James Gary at 2:19: Do you truly believe there is no difference between (a) refusing peacefully to follow a local ordinance, rooted in decades of the most ignorant prejudice, prohibiting people who happen to have skin of a certain color from sitting at a lunch counter and (b) overriding hundreds of years of moral precedent and specific statutes prohibiting torture so that people can be violently abused (and even killed) based upon a discredited theory of near-dictatorial executive power that violates the premises on which this country was founded?

Or are you just pretending?

(I know, stupid question.)

Posted by Edward, the mad shirt grinder | April 2, 2008 7:15 PM

There's more to those memos.

Check this out.

Administration Asserts No Fourth Amendment for Domestic Military Operations
http://www.eff.org/deeplinks/2008/04/administration-asserts-no-fourth-amendment-domestic-military-operations

Posted by Richard Steven Hack | April 2, 2008 7:51 PM

Someone with better writing skills than mine should do an analysis of the Bush family's habit of outsourcing their dirty work to minorities and women: Clarence Thomas, Powell, Condi, Yoo, Jackson, Gonzales, Feith et. al. (For those wondering, Feith represents the minority of one: the stupidest fucking man on the planet.)

Posted by gregor | April 2, 2008 9:31 PM

The Yoo memo is a deliberate result of Cheney's desire to get the results he wants. John O'Neill, Richard Armitage and Larry Wilkerson have all said the normal decision process was ignored by Cheney.

Posted by Steve J. | April 3, 2008 12:45 AM

Could everybody please stop confusing John Yoo with John Woo.

("It is entirely constitutional for US soldiers to be ordered to leap through the air in slow motion while firing two guns, one from each hand; the President's Article II powers as commander-in-chief give him the right to direct US military operations, and it was clearly the Framers' intent (United States v. Verhoeven) that this should include stylised gunfight scenes.")

Posted by ajay | April 3, 2008 5:30 AM

And slow motion shots of doves flying through explosions.

Posted by bago | April 3, 2008 6:33 AM

Satan is going to get a real kick out of frying John Yoo's fat ass on a spit for an eternity. But that's not torture. That's what you call just deserts.

Posted by The Fool | April 3, 2008 11:44 AM