Former Deputy Assistant Attorney General John Yoo Is A War Criminal

This is an election year, which naturally means that it's time for our media and political class to make it clear which values matter and which don't. For example, some presidential candidates might be disqualified from the office because of things their pastors said.

But what will certainly not disqualify anyone from the presidency is asserting an inalienable right to detain any man, woman or child on earth indefinitely, or, if the mood strikes him, to torture them to death.

Before this week, it was a mere guess that the current occupant of the White House had done precisely that, albeit an educated guess supported by substantial inferential evidence. Now we know for sure that George Bush, Dick Cheney, and Donald Rumsfeld, chafing at resistance within the professional ranks of the military and intelligence services to the idea of unchecked executive authority, sought out the counsel of a well-trained, scruple free lawyer whom they could be sure would fabricate a doctrine without precedent in the 800 years of common law tradition since Magna Carta, which conveniently afforded them the power to violate all the laws and norms of international conduct.

On March 14, 2003, then Deputy Assistant Attorney General John Yoo of the White House Office of Legal Counsel wrote a memo to William Haynes, then General Counsel of the Department of Defense. Yoo's purpose was to reiterate and strengthen the arguments he had authored, and his boss Jay Bybee had signed, in the Aug. 1, 2002 OLC memo that infamously defined torture out of existence. The 2003 memo, picking up where its predecessor left off, gave the Defense Department the DoJ's interpretation of the scope of presidential authority, and in effect established the Bush administration's operative guidelines in crafting its detention and interrogation policies for the spatially and temporally boundless "War on Terror."

Until the beginning of this week, the Yoo memo had been classified on dubious grounds for five years. But its effects were evident across the network of secret prison camps and torture centers the Bush administration established ostensibly to protect us from terrorism. From the horrors of the Abu Ghraib prison, where Gen. Geoffrey Miller, previously the commandant of Guantanamo Bay, was sent by Donald Rumsfeld and William Haynes to "Gitmoize" the dungeon by enabling atrocities like the torturing to death of Manadel al-Jamadi in a process called "Palestinian Hanging," to the deliberate long-term incarceration of Murat Kurnaz, deprived of his rights by anonymous bureaucrats who found it more expedient to keep an innocent man whom they knew was innocent imprisoned and disappeared than to admit an error, Yoo's handiwork is detectable in an array of war crimes and crimes against humanity breathtaking in their scope, cruelty, and utter pointlessness.

Now, thanks to the vigilance of the ACLU, we no longer have to work backwards
from the evidence of crimes against humanity to guess at the ways in which Yoo, with the encouragement and approval of his superiors, warped the post-World War II doctrines of human rights and international law the United States was so pivotal in establishing, let alone the centuries-old tradition of common law liberty upon which the US Constitution is founded. The horrific document is finally in the public domain, free of redaction and available for download. Its 81 pages are a funhouse mirror inversion of constitutional law, through which a superficially skilled attorney uses the tools of legal prose to disguise an immoral, unlearned shocking illogic according to which the president's decisions over matters of war are bound by no domestic or international law and unreviewable by any legislative or judicial body, and whose exclusive right it is to determine, for any reason or none at all, everything that falls under his war authority. In other words, the only enforceable limitations on the president's power are those the president enforces on himself; the United States, contrary to popular belief, is not a republic, but an elective dictatorship.

As sure as all bullies are cowards, Yoo is predictably attempting to distance himself from the stain of his brief Justice Department tenure on American jurisprudential history. In an interview with Esquire, Yoo claims that he and his colleagues "made clear in other settings that the Geneva Conventions fully applied to the war in Iraq. There was no intention or desire that the memo released yesterday apply to Iraq." This is as credible a denial as the Yoo memo is a credible interpretation of law. In the memo, Yoo concludes without a hint of rational uncertainty that

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.

Since Yoo elsewhere makes it clear that enemy combatants are all and only those whom the president designates as enemy combatants, the only way for the Geneva Conventions to apply to Iraq would be for the president to choose to apply them. And Yoo explicitly defends the president's right to choose otherwise. (Also, as Marty Lederman reports, the "other settings" to which Yoo alludes seem to be a complete fabrication.)

Will Yoo ever face legal ramifications for his role in facilitating an unknowable number of war crimes? Of course not. He will remain comfortably perched in an endowed chair at the Boalt Hall Law School at Berkeley for as long as he wants to be there. Meanwhile, during an election campaign to decide who will succeed the men who commissioned Yoo to advise them of their right to commit war crimes and promptly followed that advice, the media are fixated on fundraising figures, superdelegates, imagined Bosnian heroics, and the endlessly amusing game of Six Degrees of Louis Farrakhan.

At least our national priorities are clear.