[Ppnews] The High Crimes of John Yoo

Political Prisoner News ppnews at freedomarchives.org
Thu Apr 24 11:32:34 EDT 2008


April 24, 2008
http://www.counterpunch.org/


The President's Executioner


The High Crimes of John Yoo

By JENNIFER VAN BERGEN

The title of this article --The President's Executioner --is a play 
on words. It refers to professor John Yoo, who teaches law at Boalt 
Hall, University of California, Berkeley. But this man 
--mild-mannered by all appearances --is not what he seems.

He is the man who was, more often than nearly any other, behind the 
White House decisions to violate the international laws of war. He 
was the one who told the White House how to get away with committing 
war crimes. While he may have been a henchman for others who 
instructed him to make the arguments he did, he repeatedly refused to 
reverse himself, both while he worked in the Department of Justice 
and after he left that office and returned to academia.

But it was also during this time period, as we now know, that the 
Department of Justice became "politicized." Instead of executing the 
laws as it should have been doing, the Justice Department became an 
instrument of President Bush, executing his wishes. And John Yoo 
executed White House wishes to twist the law into something it was 
not and was not meant to be.

Yoo, however, did more than execute orders. The so-called "Torture 
Memos," in the writing of which Yoo was an active and primary 
participant, opened the door to such abuse of the laws that some 
detainees were actually murdered. For all practical purposes, they 
were executed, without a trial or guilty verdict.

Thus, the President's Executioner.

Yoo & the Unlimited Executive

Professor Yoo teaches the following courses: International Civil 
Litigation, International Law, Constitutional Law, Foreign Relations 
Law, Civil Procedure, International Trade, Separation of Powers Law. 
These courses cover big issues. They relate not to person-to-person 
issues, to one family's inheritance, a personal injury lawsuit, or a 
burglary. Most of the courses Professor Yoo teaches relate to how our 
country is run and who has the power to do what, internally and 
internationally.

But it would be a mistake to rely on Yoo's advice in these areas, for 
he would be interpreting laws he has broken and advised others to break.

The Office of Legal Counsel (OLC) at the Department of Justice is the 
office that issues legal opinions for the President and other 
departments (including the Department of Defense) in the executive 
branch. OLC opinions are relied on by these offices to guide them in 
carrying out their jobs. They are rarely rescinded, having almost the 
precedental effect of judicial decisions.

Yoo was the Deputy Assistant Attorney General in the OLC. While there 
he participated in authoring several documents, all of which became 
mainstays of the administration's policies at particular points and 
most or all of which the OLC later rescinded. The memos all manifest 
one characteristic: they all suggest that the President, as President 
and Commander-in-Chief, has the authority to violate any laws or 
treaties he sees fit in order to protect the country.

Jack Goldsmith, a Harvard law professor who became Deputy Attorney 
General after Yoo left and who was the one who made the difficult 
(and unpopular) decision to rescind Yoo's opinions (and who later 
resigned because of it), writes in his book 
"<http://www.amazon.com/Terror-Presidency-Judgment-Inside-Administration/dp/0393065502>The 
Terror Presidency: Law and Judgment Inside the Bush Administration" 
that Yoo's "interrogation opinions" contained an "unusual lack of 
care and sobriety in their legal analysis," and that "[n]owhere was 
this more evident than in the opinions discussion of the President's 
commander-in-chief powers." (p. 148)

Yoo's opinion went much further than necessary, Goldsmith thought. Yoo wrote:

"Any effort by Congress to regulate the interrogation of battlefield 
detainees would violate the Constitution's sole vesting of the 
Commander-in-Chief authority in the President." Goldsmith states: 
"This extreme conclusion has no foundation in prior OLC opinions, or 
in judicial decisions, or in any other source of law." (pp. 148-9) 
Yoo's pronouncement about presidential powers, furthermore, "was all 
the more inappropriate because it rested on cursory and one-sided 
legal arguments that failed to consider Congress's competing wartime 
constitutional authorities, or the many Supreme Court decisions 
potentially in tension with the conclusion." (p. 149)

Of course, the "interrogation opinion" was not Yoo's only one, as we now know.

The Yoo Memos

Yoo's memos were written in the wake of 9/11. On September 18, 2001, 
Congress issued the 
<http://news.findlaw.com/wp/docs/terrorism/sjres23.es.html>Authorization 
to Use Military Force (AUMF), which authorized President Bush to:

use all necessary and appropriate force against those nations, 
organizations, or persons he determines planned, authorized, 
committed, or aided the terrorist attacks that occurred on September 
11, 2001, or harbored such organizations or persons, in order to 
prevent any future acts of international terrorism against the United 
States by such nations, organizations or persons.

Only fourteen days after 9/11 and a week after Congress issued the 
AUMF, Yoo submitted his first memo: 
"<http://www.usdoj.gov/olc/warpowers925.htm>Memorandum Opinion for 
the Deputy Counsel to the President" titled "The President's 
Constitutional Authority to Conduct Military Operations Against 
Terrorists and Nations Supporting Them." This memo claimed:

The President has constitutional power not only to retaliate against 
any person, organization, or State suspected of involvement in 
terrorist attacks on the United States, but also against foreign 
States suspected of harboring or supporting such organizations. The 
President may deploy military force preemptively against terrorist 
organizations or the States that harbor or support them, whether or 
not they can be linked to the specific terrorist incidents of September 11.

On November 13, 2001, the White House issued a 
<http://www.whitehouse.gov/news/releases/2001/11/20011113-27.html>Presidential 
Military Order (PMO) on detentions, which Yoo co-authored with Vice 
President Cheney's legal counsel, David Addington. The PMO purported 
to authorize the Secretary of Defense to detain terrorist suspects 
indefinitely and created military commissions to try those he decided 
to try. It established procedural baselines for commissions which 
(along with later-issued DOD procedures) were later ruled 
unconstitutional by the Supreme Court in 
<http://www.supremecourtus.gov/opinions/05pdf/05-184.pdf>Hamdan v. Rumsfeld.

A little over a month later, on December 28, 2001, Yoo submitted 
another memorandum, this time co-authored with fellow Deputy 
Assistant Attorney General Patrick F. Philbin, to William J. Haynes 
II, General Counsel to the Department of Defense, titled 
"<http://www.pegc.us/archive/DOJ/20011228_philbinmemo.pdf>Possible 
Habeas Jurisdiction Over Aliens Held in Guantanamo Bay, Cuba." While 
expressing some uncertainly, the memo argues that "the 
<http://www.amazon.com/exec/obidos/ASIN/1567512925/counterpunchmaga>
[]
great weight of legal authority indicates that a federal district 
court could not properly exercise habeas jurisdiction over an alien 
detained" at Guantanamo. (The administration maintained this argument 
all the way up to the Supreme Court, which ruled against it in 
<http://www.law.cornell.edu/supct/html/03-334.ZS.html>Rasul v. Bush.)

Then, on January 9, 2002, Yoo submitted a memorandum titled 
"<http://pegc.us/archive/DOJ/20020109_yoomemo.pdf>Application of 
Treaties and Laws to al Qaeda and Taliban Detainees" and co-authored 
with Special Counsel Robert J. Delahunty, that purported to address 
"the effect of international treaties and federal laws on the 
treatment of individuals detained by the U.S. Armed Forces during the 
conflict in Afghanistan."

This memo argued that the President was not bound by international 
laws in the war on terror. The memo stated that "any customary 
international law of armed conflict in no way binds, as a legal 
matter, the President or the US Armed Forces concerning the detention 
or trial of members of al-Qaeda and the Taliban." The memo purported 
to deny the protections of international laws to detainees and to 
exempt from liability those who denied such protections. The memo 
thus approved and promoted violations by the U.S. of long-standing 
international laws and treaties.

Finally, Yoo authored a memo that was dated August 1, 2002, titled 
"<http://pegc.us/archive/DOJ/bybee_memo_20020801.pdf>Standards of 
Conduct for Interrogation under 18 U.S.C. ss. 2340-2340A" (the 
statutes that implement the Convention Against Torture and Other 
Cruel, Inhuman, and Degrading Treatment or Punishment (CAT)). 
According to Goldsmith, "This opinion was addressed to Alberto 
Gonzales from my predecessor, Jay Bybee, but according to press 
reports and John Yoo's public comments, it was drafted by Yoo 
himself." (Terror Presidency, p. 142)

Among other criteria, it stated that "[p]hysical pain amounting to 
torture must be equivalent in intensity to the pain accompanying 
serious physical injury, such as organ failure, impairment of bodily 
function, or even death." Goldsmith states: "The opinion formed part 
of the legal basis for what President Bush later confirmed were 
'alternative' interrogation procedures used at secret locations on 
Abu Zubaydah, a top al Qaeda operative; Khalid Sheikh Mohammed, the 
al Qaeda mastermind behind the 9/11 attacks; and other 'key 
architects of the September 11th' and other terrorist attacks." (p. 142)

Jordan Paust writes in 
"<http://www.amazon.com/exec/obidos/ASIN/0521711207/counterpunchmaga>Beyond 
the Law: The Bush Administration's Unlawful Responses to the 'War' on Terror,":

"The memo attempted to justify torture as well as the intentional 
infliction of pain more generally as interrogation tactics" and it 
"was completely erroneous with respect to Geneva law and war crime 
responsibility." (p. 11)

Media and Legal Experts on Yoo's Memos

The January 9, 2002 memo, which discusses the application of treaties 
on detainees, is widely viewed as having sparked the abuse and 
torture of prisoners by members of the U.S. military. The Department 
of State (DOS) responded to Yoo that "both the most important factual 
assumptions on which your draft is based and its legal analysis are 
seriously flawed." Two days after Yoo issued his January 9th memo, 
DOS legal adviser William H. Taft, IV, commented that all three of 
Yoo's main premises were wrong as a matter of international law and 
other arguments he made were "without support," "contrary to the 
official position of the United States," and "legally flawed and 
procedurally impossible at this stage."

In a May 25, 2004 Newsweek article, referring to Yoo's memos, 
reporter Michael Isikoff stated that

"Critics say the memos' disregard for the United States' treaty 
obligations and international law paved the way for the Pentagon to 
use increasingly aggressive interrogation techniques at Guantanamo 
Bay -- including sleep deprivation, use of forced stress positions 
and environmental manipulation -- that eventually were applied to 
detainees at the Abu Ghraib prison in Iraq."

(For all the so called "torture memos" and other "Interrogation 
Documents,"<http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB127/>click here.)

Scott Horton -- an expert on human rights law and the law of armed 
conflict, a professor at Columbia University School of Law, a 
commentator for Harper's Magazine, and a partner at Patterson, 
Belknap, Webb & Tyler LLP in New York -- wrote that
" following the issuance of high-level legal advice [eg., the 
Yoo/Delahunty and other memos] ... command authorities in Iraq no 
longer considered the Geneva Conventions to restrain them in their 
handling of detainees."

Isikoff quoted Kenneth Roth, the executive director of Human Rights 
Watch, who had examined the memo. Roth "described it as a 
'maliciously ideological or deceptive' document that simply ignored 
U.S. obligations under multiple international agreements. 'You can't 
pick or choose what laws you're going to follow,' said Roth. 'These 
political lawyers set the nation on a course that permitted the 
abusive interrogation techniques' that have been recently disclosed."

Jordan J. Paust, Professor of International Law at University of 
Houston Law Center wrote in 
"<http://www.amazon.com/exec/obidos/ASIN/0521711207/counterpunchmaga>Beyond 
the Law" about the memo:

"Yoo and Delahunty knew that their claim" about the application of 
the Geneva Conventions "was completely contrary to developments in 
the customary laws of war recognized by the International Court of 
Justice and the International Criminal Tribunal for Former 
Yugoslavia, but they thought their reliance on a fifty-three-year-old 
text and 'historical context' was preferable..." (p. 10.)

Another eminent law professor, Stephen Gillers, at New York 
University School of Law noted that:

"Explicitly and by omission, then, the lawyers [Yoo and Delahunty] 
told the government it could treat detainees from Afghanistan as 
though they existed outside the rule of law."

While the Memo purported to consider the effect of international 
treaties and federal law on the treatment of detainees from 
Afghanistan, it "ignore[d] duties imposed by the Convention against 
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 
(which the United States ratified with reservations in 1994) and the 
federal torture statute, which creates criminal liability for U.S. 
nationals who commit torture abroad under color of law." As further 
explained by Scott Horton (and quoted by Gillers), the Yoo and 
Delahunty memo "is not only wrong, it lays the groundwork for the 
commission of war crimes."

But the January 9th memo is clearly not the only one that could be 
construed as giving interrogators carte blanche on extreme 
techniques. The August1st memo specifically deals with the issue of 
torture and attempts to redefine it to permit interrogations that 
most experts agree would violate traditional prohibitions. Goldsmith 
notes that the definition of pain amounting to torture was "culled 
... ironically, from a statute authorizing health benefits." (p. 145) 
According to Yoo himself, the denial of Geneva protections and the 
coercive interrogation "policies were part of a common, unifying 
approach to the war on terrorism." (Paust, p. 177, fn. 14, quoting 
Yoo, 
"<http://www.amazon.com/War-Other-Means-Insiders-Account/dp/0871139456>War 
by Other Means.")

Yoo's Most Recently-Revealed Memo

Last week, the Washington Post published yet another memo that Yoo 
had authored. This one was dated March 14, 2003 and discussed 
"Military Interrogation of Alien Unlawful Combatants Held Outside the 
United States." 
(<http://media.washingtonpost.com/wp-srv/nation/pdfs/OLCMemo1-19.pdf>Part 
1, 
<http://media.washingtonpost.com/wp-srv/nation/pdfs/OLCMemo20-39.pdf>Part 
2, 
<http://media.washingtonpost.com/wp-srv/nation/pdfs/OLCMemo40-59.pdf>Part 
3, <http://media.washingtonpost.com/wp-srv/nation/pdfs/OLCMemo60-81.pdf>Part 4)

Here again, Yoo argues that the President is not bound by federal 
laws. "Such criminal statutes, if they were misconstrued to apply to 
the interrogation of enemy combatants, would conflict with the 
Constitution's grant of the Commander in Chief power solely to the 
President," writes Yoo. The laws by which Yoo says the President is 
not bound are those that prohibit torture, assault, maiming, 
stalking, and war crimes. Yoo's opinion restricts the application of 
treaties against torture to definitions that, once again, simply 
authorize torture as long as it doesn't kill the person.

Further, contrary to current understanding of international law, 
Yoo's memo declares that "our previous opinions make clear that 
customary international law is not federal law and that the President 
is free to override it at his discretion." And finally, the memo 
suggests several defenses (military necessity and self defense) for 
those brought up on criminal charges for violating laws during interrogations.

According to Vincent Warren, the Executive Director of the Center for 
Constitutional Rights:

The 'Torture Memo' was not an abstract, academic foray. Rather, it 
was crafted to sidestep U.S. and international laws that make 
coercive interrogation and torture a crime. It was written with the 
knowledge that its legal conclusions were to be applied to the 
interrogations of hundreds of individual detainees... And it worked. 
It became the basis for the CIA's use of extreme interrogation 
methods as well the basis for DOD interrogation policy.

Warrens adds that

"Yoo's legal opinions as well as the others issued by the Office of 
Legal Counsel were the keystone of the torture program, and were the 
necessary precondition for the torture program's creation and implementation."

Marjorie Cohn, President of the National Lawyers Guild, analyzing 
Yoo's actions in light of the relevant case law, writes that Yoo was 
an "integral part of a criminal conspiracy to violate U.S. laws" in 
which "it was reasonably foreseeable that the advice [Yoo] gave would 
result in great physical or mental harm or death to many detainees."

Cohn echoes Scott Horton, who writes that

Yoo's "analysis was false, a point acknowledged ultimately by the 
[Office of Legal Counsel in the Department of Justice] itself" and 
points out that "a solid basis exists under the standard articulated 
by the United States under which John Yoo may be charged and brought 
to trial" for the false legal advice he gave.

Crimes

Yoo's efforts to deny rights to detainees is, alone, a breach of 
basic requirements of the 1907 Hague Convention, which states that 
"it is especially forbidden ... [t]o declare abolished, suspended, or 
inadmissible in a court of law the rights and actions of the 
nationals of the hostile party." (Laws and Customs of War on Land 
(Hague IV); October 18, 1907, Art. 23)

Breaches of the Hague or Geneva Conventions may constitute war 
crimes, by definition, under the 1996 
<http://www.law.cornell.edu/uscode/18/usc_sec_18_00002441----000-.html>War 
Crimes Act.

"War crimes" are not just crimes under some vague view of 
unenforceable international law subject to dispute by civilized 
nations. Nor are they just crimes under widely accepted international 
laws;they are also crimes under U.S. federal domestic law.

Professor Yoo not only laid the groundwork for the commission of war 
crimes by others, but his "legal advice" was itself a promotion of crime.

His memos provided advice on how to break the law and avoid 
prosecution. His continued endorsement of the views expressed in his 
memo could be construed as continued promotion of unlawful 
activities, which could subject him to criminal prosecution. (Paust, p. 20.)

Beyond the issue of Yoo's direct liability for aiding and abetting 
crimes is the question whether the Yoo/Delahunty memo has misled 
other departments or branches of the government. In a November 7, 
2005, blog entry, Horton pointedly asked:

"Has the Department of Justice been corrupted by its 'torture 
memoranda'?" Given subsequent revelations of Justice Department 
improper "politicization" and firings of U.S. attorneys, the effect 
of Yoo's memos seems highly relevant.

Professor Paust, who calls the Yoo/Delahunty memo "manifestly 
erroneous," "unprofessional, and subversive," states:

"What is particularly disturbing is the attempt to mislead and abuse 
the judiciary to further the denial of required rights and 
protections." Paust points to at least one instance where a court has 
been misled. (Paust, pp. 19-20.) Paust says that the "criminal 
memoranda and behavior of various German lawyers in the German 
Ministry of Justice, high-level executive positions outside the 
Ministry, and the courts in the 1903s and 1940s that were addressed 
in informing detail in "The Justice Case" ... reflect the concern 
regarding government lawyer attempts to use courts to further a 
denial of required rights and protections under the laws of war. 
Consequences for the German legal system were disastrous ... and 
consequences for a number of lawyers included criminal convictions 
for, among other crimes, aiding and abetting violations of the laws 
of war." (pp. 19-20)

Horton, in a response to a statement issued by Christoperh Edley, 
Jr., dean of the law school at the University of California, 
Berkeley, where Yoo teaches, states the legal standard in The Justice 
Case, also known as 
<http://www.law.umkc.edu/faculty/projects/ftrials/nuremberg/Alstoetter.htm>U.S. 
v. Altstoetter:

First, the case dealt with persons under detention in wartime (not 
POWs, in fact most of the cases in question addressed persons not 
entitled to POW or comparable protections). Second, it had to be 
reasonably foreseeable that the advice dispensed would result in 
serious physical or mental harm or death to a number of the persons 
under detention. Third, the advice given was erroneous.

Horton sums up:

"Each of these criteria is satisfied with respect to Yoo's advice 
under the torture memoranda" and adds that "what [Yoo] did raises not 
merely ethics issues, but actual criminal culpability."

Horton's conclusion bears marking:

Yoo is protected by the political umbrella of the Bush Administration 
for the moment, which is to say, he is protected by his actual fellow 
conspirators, including those who continue to run the Department of 
Justice. That protection will expire soon enough, and it is highly 
unlikely that the Government which follows in its wake will be 
prepared to act quite so strenuously as this one in Yoo's behalf.

Jennifer Van Bergen, a journalist with a law degree, is the author of 
<http://www.amazon.com/exec/obidos/ASIN/1567512925/counterpunchmaga>THE 
TWILIGHT OF DEMOCRACY: THE BUSH PLAN FOR AMERICA (Common Courage 
Press, 2004) and 
<http://www.amazon.com/exec/obidos/ASIN/1932907254/counterpunchmaga>Archetypes 
for Writers: Using the Power of Your Subconscious (Michael Weise 
Productions, 2007). She can be reached at 
<mailto:jvbxyz at earthlink.net>jvbxyz at earthlink.net.




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