John Yoo: Academic Censure Should be the least of his worries
Again last week more than 600,000 Americans lost their jobs. One professor on leave from UC Berkeley was not among them, and at the very least that's a dirty shame, despite this fawning tribute from Esquire.
Is this a war? How can the president respond? Can he use the Army? Will he need congressional approval? Is this a war?
“It’s like pornography,” one student says. “You know it when you see it.”
It’s just semantics, says another. “When there’s something as powerful as war, we don’t want the president to just go ahead.”
But why not? Yoo asks.
“Because we like checks and balances and we like the Constitution?”
“So you’re worried about one person making mistakes. War is so dangerous, the stakes are so high, you wouldn’t want one person making that decision?”
“That’s why it’s so important to have checks and balances,” the student agrees. “Otherwise the president could run wild. Like we have today, with the powers of an unchecked president -- I call that running wild.”
“So you’re worried about errors,” Yoo answers, perfectly calm. “That’s certainly the case with Iraq. We overestimated the benefits and underestimated the costs.”
But now the hour is up and the students gather their papers -- and Yoo still keeps shooting out last-minute questions. “Is the president really prone to error more than the other branches? Isn’t that also true of Congress? If you require Congress to give preapproval for every conflict, what is the cost? Why didn’t Truman ask for a declaration of war in Korea, even though Congress would have given him one?”
That taxpayer funds continue to keep this guy afloat seems to me at least as rotten a proposition as anything AIG execs did with their bailout money -- because they were crooks, but this guy wasn't just a garden-variety swindler, a member of the "ownership society" -- he was an ADVOCATE for violating the Geneva Conventions and turning the US into a nation that does, in fact, torture.
Who? John Yoo.
Bush is out of a job.
Cheney isn't working.
Even Randian disciples Rumsfeld and Rice are reduced to writing books and seeking professorial pulpits from which to pontificate on the brave new world they sought to create during the past eight years. But this guy is still drawing a salary -- and he works for the government, in a state with a multi-dozen-billion-dollar deficit.
So who do I want to see moved out of his comfort zone? The guy who wrote the pro-torture memos for President George W. Bush. The guy whose legal expertise -- if you want to call his right-wing hard-line inhumanity anything other than psychopathic raving -- brought us Gitmo and Abu Ghraib and helped gut Posse Comitatus as well as the First and Fourth Amendments, all the while claiming the US Constitution itself could justify overturning the rights it spells out for the citizenry.
From the Esquire interview:
But (Yoo's memos) remind us of what we have done and what we will continue to do. Consider the fight over Michael Mukasey’s nomination for attorney general, when Mukasey refused to call waterboarding torture. He said he didn’t want to put the CIA officers who made these judgments in the heat of battle “in personal legal jeopardy.” It seemed so ridiculous, right out of 1984. The Khmer Rouge used waterboarding. We prosecuted Japanese generals for doing it. But Mukasey was confirmed anyway, and four months later President Bush vetoed a law that banned waterboarding. Consider also that courts and Congress have endorsed many of Yoo’s opinions, including the use of military commissions and the extended detention without criminal charges of “enemy combatants” who are American citizens.
Yoo recently whined
to the Orange County Register (another reason newspapers can't die fast enough, as they're presently incarnated):
In a little known interview with the Orange County Register, published March 3, Yoo said he doesn't "think he would have made the basic decisions differently."
However, he said he would have polished the memos up a bit and spent more time on legal research had he known the memos would be released publicly.
"These memos I wrote were not for public consumption," Yoo told the OC Register. "They lack a certain polish, I think -- would have been better to explain government policy rather than try to give unvarnished, straight-talk legal advice. I certainly would have done that differently.
"I think the job of a lawyer is to give a straight answer to a client. One thing I sometimes worry about is that lawyers in the future in the government are going to start worrying about, 'What are people going to think of me?' Your client the president, or your client the justice on the Supreme Court, or your client this senator, needs to know what's legal and not legal. And sometimes, what's legal and not legal is not the same thing as what you can do or what you should do."
Perhaps recognizing that his legal work wasn't up to the Department of Justice (DOJ) professional standards, Yoo offered the OC Register an explanation to excuse what one former colleague described as "sloppily reasoned" legal arguments.
"The thing I am really struck with is that when you are in the government, you have very little time to make very important decisions." Yoo told the Register. "You don't have the luxury to research every single thing and that's accelerated in war time. You really have decisions to make, which you could spend years on. Sometimes what we forget as private citizens, or scholars, or students or journalists for sure (he laughs), is that in hindsight, it's easier to say, 'Here's what I would have done.' But when you're in the government, at the time you make the decision, you don't have that kind of luxury."
He'd've fit right in with the interrogators who threw suspected Viet Cong out of helicopters in the 1960s, as related by Steve Noetzel during Winter Soldier I pour encourager les autres.
Bush administration officials wanted to benefit from lessons that came out of torture imposed on US POWs. Yoo, then in his early 30s and eager to advocate for his clients' desires, obligingly codified the criminality as Constitutionally legal. When this treatment was meted out to US GIs, it was a war crime; when the US wanted to do this to its captured "enemy combatants," it needed a fig leaf. Yoo cut down the tree and wove its leaves into cover for his bosses.
Now, he's willing to bend Clausewitz to his own defense. His interpretation of the quote he uses to justify his work reveals a sloppiness in interpretation and thinking reminiscent of his "unpolished" torture memos. He sees what he wants to see, whether that's what's in front of him or not.
Consider his dismissal of President Obama's decision to close Gitmo.
But Yoo doesn't limit his vision to any one President or any one decision -- he sweeps the Constitution aside in favor of executive powers and privileges right across the board. Checks and balances? Piffle, says Yoo. He says there's no use declaring a war anymore.
Congress just gets in the President's way, debating whether or not a war is needed or justifiable or even not a spectacularly bad idea before signing off on it. The Constitution be damned; it's inconvenient to play by the rules in Yoo's universe. It's too much work to research, even when that's what you're asked to do, tasked with, paid for, in support of a President. If the Congress really wants to stop the President making war, they need only refuse to fund it.
That was effective with Bush's "off the books" six-year aggression in Iraq, wasn't it, Professor Yoo? I mean, the war in Iraq stopped right away when Congress didn't hand over several hundred billion dollars a month, no questions asked; there weren't more than 4400 US GIs killed, countless thousands injured, and an unknowable number of Iraqi civilians -- women, children, noncombatants -- slain as collateral damage, right? It didn't wear on into the Obama administration, shaming the United States in front of the entire world as an aggressive and dishonest pariah, now did it? All us dirty hippies, leftist agitators, and protesters were able to just stop your almighty President Bush in his tracks before any harm could be done, right?
John Yoo: The United States has often engaged in military hostilities without any declaration of war. In the first few years of the nation, for example, the United States went to one major war without a declaration (with France in 1798), and to another with a declaration (Great Britain in 1812). Since World War II, the practice has been to go to war without a declaration. None of the major wars in this period—Korea, Vietnam, Grenada, Panama, the Persian Gulf War, Kosovo, Afghanistan, and Iraq-have witnessed a declaration.
Why not? Declarations of war do not serve a purpose in the balance of powers between the president and Congress in wartime. They can play a role, under international law, in defining the nation's legal status vis-à-vis an enemy, but this purpose has faded with the rise of wars of self-defense or those under international approval (where no declaration would be needed). War declarations do not play an important role in the domestic process of deciding on war. Instead, Congress has at its disposal many other powers to balance presidential power in warmaking. Congress has complete control over the raising, funding, and size of the military. It can block a president's warmaking simply by refusing to allocate funds for a conflict. Declarations of war have disappeared in part because the president and Congress interact along many other dimensions when war is involved.
In a world where justice actually mattered, a lawsuit to fire this guy wouldn't be needed. But in the world where we the people elected a President who promised us Change, at least one thing remains, shamefully, unchanged -- as reported by AlterNet:
Last month, Brad DeLong, a UC Berkeley economics professor, wrote a letter to Robert Birgenau, Berkeley's Chancellor, calling for Yoo to be fired.
"Out of a concern for justice, a concern for humanity, and a concern for our reputation as a university, to dismiss Professor John Yoo from membership in our university," says DeLong's February 16 letter.
Yoo said he's not surprised at the reception he received at Berkeley.
"Berkeley is sort of a magnet for hippies, protesters and left-wing activists," Yoo said. "So I'm not surprised that being one of the few recognizable conservatives on campus that I would generate a lot of heat and friction. It happened well before working in the Bush administration."
Governor Schwarzenegger, California Legislature, UC Berkeley regents: the salary this guy's earning is an expense your state doesn't need any more. No matter what Alan Dershowitz says. Really. He's another lawyer, and he's hoodwinking you too. It's what lawyers do.
If you want to spend state money on John Yoo, spend it on a jail cell for him. That's where he belongs. Listen to Scott Horton, who explains exactly why:
But aside from this, Dershowitz’s comment that criticism of Yoo is a form of “leftwing McCarthyism” is absurd. Yoo is not being taken to task for his views or even his academic writings. In fact, it’s clear that Yoo was helped on his path to a tenured post at Berkeley by his movement conservative perspective—the faculty and dean were eager to have a prominent writer from a politically influential legal movement on board. Yoo’s problem comes from what he did as a government lawyer, in authoring a series of opinions which were essential in implementing torture policy. More than a hundred individuals died in captivity and in more than two dozen cases, the deaths have been directly connected to the use of torture techniques that John Yoo approved. His work had lethal consequences.