Finally, the infamous John Yoo torture memo was been declassified and released. Wrapped up in legal niceties, Yoo’s philosophy boiled down to a simple point: the president can do whatever it takes to protect US security.
“Any effort by Congress to regulate the interrogation of enemy combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President….Congress can no more interfere with the President’s conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield.”
And the implication is clear:
“If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network. In that case, we believe that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.”
In other words, the protections of the law can be set aside for the most consequentialist of reasons. As Kevin Drumnotes, the power of the president in this “Yooniverse” are practically absolute” “Congress can’t bind him, treaties can’t bind him, and the courts can’t bind him. The scope of power the memos suggest is, almost literally, absolute. And since this is a war without end, the grant of power is also without end.”
Listen to Yoo in his own words, argue– in a cold and calculating manner– that the president can legally torture children (sounds like an SNL skit? If only.)
It was this very memo that led to the abuses of Abu Ghraib and elsewhere. As is now well known, the Yoo memo was endorsed by Donald Rumsfeld and given to Geoffrey Miller before he was assigned to Iraq, and was the source of all the abuse that took place there– despite the best attempts of the administration to blame rogue elements in the military. As noted in a recent essay by Philip Gourevitch and Errol Morris in the New Yorker:
” The low-ranking reservist soldiers who took and appeared in the infamous images were singled out for opprobrium and punishment; they were represented, in government reports, in the press, and before courts-martial, as rogues who acted out of depravity. Yet the abuse of prisoners at Abu Ghraib was de facto United States policy. The authorization of torture and the decriminalization of cruel, inhuman, and degrading treatment of captives in wartime have been among the defining legacies of the current Administration; and the rules of interrogation that produced the abuses documented on the M.I. block in the fall of 2003 were the direct expression of the hostility toward international law and military doctrine that was found in the White House, the Vice-President’s office, and at the highest levels of the Justice and Defense Departments.The Abu Ghraib rules, promulgated by Lieutenant General Ricardo Sanchez, the commander of ground forces in Iraq, elaborated on the interrogation rules for Guantánamo Bay, which had been issued by Secretary of Defense Donald Rumsfeld; they were designed to create far more license than restriction for interrogators who sought to break prisoners. The M.P.s at Abu Ghraib were enlisted as enforcers of such practices as sleep deprivation, sexual humiliation, sensory disorientation, and the imposition of physical and psychological pain. They never received a standard operating procedure to define what was required and what was allowed, but were repeatedly instructed simply to follow the guidance of Military Intelligence officers.”
And, as Glenn Greenwald notes, Yoo is complicit in war crimes. He cannot simply hide behind his academic ivory tower in sunny Berkeley. It was not merely an odious theoretical argument. Greenwald:
“John Yoo’s Memorandum, as intended, directly led to — caused — a whole series of war crimes at both Guantanamo and in Iraq. The reason such a relatively low-level DOJ official was able to issue such influential and extraordinary opinions was because he was working directly with, and at the behest of, the two most important legal officials in the administration: George Bush’s White House counsel, Alberto Gonzales, and Dick Cheney’s counsel (and current Chief of Staff) David Addington. Together, they deliberately created and authorized a regime of torture and other brutal interrogation methods that are, by all measures, very serious war crimes.”
Greenwald also notes a clear principle enunciated at the Nurenberg trials: war criminals “include not only those who directly apply the criminal violence and other forms of brutality, but also government officials who authorized it and military officials who oversaw it.” Ironically, the Bush administration argued this very point in the Hamden case when they dubbed Bin Laden’s driver a war criminal on the grounds that it is enough to be part of conspiracy to engage in war crimes. And, even more ironically, Justices Thomas and Scalia agreed. In a just world, not only John Yoo but David Addington and Alberto Gonzales would be charged with war crimes. And not only them, but Donald Rumsfeld, Richard Cheney, and George Bush.
So there we have it. The people that honest Catholics chose to defend the gospel of life turned out to be war criminals. One final point: Yoo’s position is merely an extremist version of the strong theory of executive power held by people like Samuel Alito and John Roberts (don’t fool yourself for a minute that abortion was the primary reason for picking these people). What do these justices now think of Yoo’s argument? And assuming they repudiate it, are they willing to dub him and his co-conspirators war criminals?