Tag Archives: John Yoo

Judgement at Nuremberg

Kathleen Parker cluelessly asks:

When did we start punishing lawyers for producing opinions with which we disagree? And where does that road lead?

The answer: Nuremberg

And that's not the dumbest part of her argument.  This inexplicably moronic assertion (seen by now all over the place, e.g., here) shows up as well:

Moreover, the same technique is used to train our own military personnel, who do not suffer severe physical pain or prolonged mental harm. 

The logic of this claim is completely baffling.  If we use the technique known as waterboarding in order to prepare our military personnel for the kinds of torture that the enemy might use against them, then on that account it's not torture if we use it against the enemy.  But if it's not torture, then we are either tormenting our soldiers for no good reason or we are giving the enemy a pass in virtue of our using it as training.  

With or Without Yoo

Two interesting quotations from Ruth Marcus’s Washington Post column–One pro John Yoo, tortured torture memo writer, one contra.  The first one, from Columbia University law Professor Scott Horton, addresses someone (Elder) who does not find Yoo’s legal work grounds for discipline or revocation of his tenure at Berkeley.  He says that Elder

"is appropriately concerned about freedom of expression for his
faculty. But he should be much more concerned about the message that
all of this sends to his students. Lawyers who act on the public stage
can have an enormous impact on their society and the world around them.
. . . Does Dean Edley really imagine that their work is subject to no
principle of accountability because they are mere drones dispensing
legal analysis

There’s a wide gulf between "not punishable in this instance by the University" and "subject to no principle of accountability."  Horton sets up a false dichotomy–accountable or not.

On the pro-Yoo side:

The most useful analogy I’ve read on this subject comes from Princeton
professor Deborah Pearlstein, who asked what Berkeley would do if a
molecular biology professor "had written a medical opinion while in
government employ disclaiming the truth of evolution," and continued to
dispute the theory of evolution once he resumed teaching.

a human rights lawyer, found Yoo’s memo "blatantly, embarrassingly
wrong under the law," but she conceded that legal conclusions lack the
hard certainty of scientific truth. Yoo should no more be removed from
a teaching job than a Supreme Court justice who writes a despicable
opinion — upholding slavery, allowing separate but equal facilities,
permitting the internment of Japanese Americans during World War II —
should be impeached.

I’m confused by the analogy in the first paragraph.  If that’s the case, then indeed Yoo ought to be fired for not having competence in his subject matter.  Academic freedom ought not be a cover for incompetence.  But I doubt he would have gotten that far anyway. 

The second paragraph rings odd.  And it hardly makes the point that Yoo ought to be protected from firing.  Any Supreme Court judge who argues for slavery ought to be impeached–now (and probably back then as well).  Even though legal opinions lack the "hard certainty" of scientific truth (whatever that means), it doesn’t mean that some legal opinions are simply beyond the pale.  

By most accounts–even friendly ones–Yoo’s opinions were beyond the pale.  The fact is, however, that was a different job.  This seems to me to be the key difference that’s being overlooked here.  Berkeley was dumb enough to hire him and give him tenure.  They ought to be ashamed.  But it’s too late now. 

Of course, if he broke the law and is found to have committed war crimes, then indeed, he ought to be fired.  But that’s a matter for, er, the law.  


Whatsa Matta Yoo?

A Justice Deparment lawyer, John Yoo (now a law professor at Berkeley–that’s liberal academia for you), put together a legal memo in 2003 that amounted to a justification of the President’s right to torture people in his capacity as Commander in Chief in time of war.  Here’s a critical passage in that argument:

As we have made clear in other opinions involving the war against al Qaeda, the Nation’s right to self-defense has been triggered by the events of September 11. 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. This national and international version of the right to self-defense could supplement and bolster the government defendant’s individual right.

One reason you torture someone is to discover information (whether that information is any good is another matter).  You might also torture someone for fun or for punishment.  But the relevant sense of torture for this memo is the former–torture for information about the future.  Yoo argues that if you put "information discovery" under the broader rubric of self-defense, then you can torture anyone at any time, so long as you are attempting to "prevent future attacks" (which would probably characterize any interrogation after all).

That seems to be a rather vague standard, as it could be invoked to justify any instance of interrogation torture.  But the weird thing here is that Yoo would construe this national right of self-defense (which applies I would guess to war) as applicable to individual torturers.  Any particular defendant who torturers a suspect for information, you see, is merely engaging in a completely justifiable act of personal self-defense.