No Comment — January 23, 2008, 9:39 am

Deconstructing John Yoo

Once again, poor John Yoo, the author of the original torture memorandum and steady defender in public fora of waterboarding and crushing the genitalia of small children, feels he is being persecuted. This has been a steady theme of his writings in the Journal, in which he has lashed out against former Attorney General Ashcroft, the Supreme Court in its Rasul and Hamdan decisions, and his colleagues in academia. This time the victimizer is his own alma mater. A Yale Law School clinic has supported a lawsuit filed against him in federal court in San Francisco seeking nominal damages ($1 plus attorney’s fees and costs) on behalf of Jose Padilla. The Wall Street Journal and other organs of the Neoconservative world (of which the soft-spoken Yoo is a card-carrying member) reacted promptly and in unison. This law suit is a ludicrous act of harassment, they say, blasting away against Yale Dean Harold Koh and a series of additional windmills who have nothing to do with it.

But John Yoo’s self-defense, published on Saturday, is extremely revealing. It merits a pause and careful read through. In it, Yoo is on the warpath. Moreover, he goes out of his way to describe the nature of his warpath. The war is all about politics, he tells us. Yoo very thoughtfully allows the inner Yoo to shine through. His writing will provide plenty of grist for his severest critics. Let’s take a look.

War is a continuation of politics by other means, the German strategist Carl von Clausewitz famously observed in his 19th-century treatise, “On War.” Clausewitz surely could never have imagined that politics, pursued through our own courts, would be the continuation of war.

John Yoo likes to quote from Clausewitz these days. But does he really understand him? I don’t think so. The passage cited here, the most clichéd lines of a thoughtful but incomplete masterwork, reveals Yoo’s passion for the good sound bite and indifference to the subtleties of the texts he engages. Of course, if you’ve actually read Clausewitz, you know that this passage is crafted in a typically early nineteenth century dialectical style. It does not reflect Clausewitz’s thinking, but rather that of a straw man. Clausewitz presents his readers with an argument. One man contends that war is a “mere continuation” (“bloße Fortsetzung”) of politics, while a second says that it is “nothing more than a wrestling match.” But the synthesis view that Clausewitz articulates, and which presents the pearl in the heart of On War is far more subtle and complex. War is, he says, a dynamic and inherently unstable interaction of forces of violent emotion, chance and rational planning–his ominous trinity–which is paralleled by another trinity, namely, the people, the army and the leadership. Clausewitz stresses the imperative role played by discipline and training, clear rules, and careful planning towards a clearly conceived objective. Most military leaders in the United States today would not give the Bush Administration a passing grade on any of the key Clausewitz criteria, and Yoo is now notorious among the officer corps for his intemperate attacks contained in a shameless article he recently published in the UCLA Law Review. He all but accuses the senior tiers of the JAG Corps of disloyalty to President Bush for attempting to uphold centuries-old standards of military discipline and order. For Yoo that’s all poppycock. He knows better than military traditions that stretch back to President Washington. Indeed, Yoo’s attitudes towards traditional military rules can be summarized in a single word: contempt. That’s why whenever law of armed conflict issues came up, he never consulted the experts at the Defense Department, he coped with it himself. And he got virtually every significant issue dead wrong. Yoo is like the sorcerer’s apprentice whose half-learned incantations unleash chaos within a few hours of the master’s departure.

But Yoo’s diatribe helps us understand the role he envisions for warfare. In the Yoo conceptualization, war is used to accomplish political objectives—except that he understands “politics” the way Karl Rove does, not in the sense used by Clausewitz or Aristotle.

Yoo’s second sentence raises another of his favorite charges, namely “lawfare.” This lawsuit, he tells us, is just the enemy continuing his struggle in our own courts. Would Clausewitz ever imagine this?, he asks rhetorically. Well, Clausewitz was a humble servant of the mighty kingdom of Prussia, the modern Sparta, whose residents (they weren’t citizens, mind you) had no “rights” other than to serve the whim of their monarch. Such a large part of the male populace was conscripted into military service for such lengthy periods that the economic viability of Prussia was challenged. While powerful, it was also quite poor and life there was bleak and austere. No, Clausewitz did not know law courts that catered to the “rights” of “citizens,” though he did read and admired Kant, so perhaps he dreamt of just that. No doubt, however, that for John Yoo the model of the Prussian monarchy of 1830 is far more congenial than American democracy in the twenty-first century. There’s no accounting for taste.

Of course, while Yoo cites Clausewitz, he seems to have another German thinker in mind: Carl Schmitt. As the “crown jurist” of Germany in the thirties, Schmitt is famous for a number of flashes of dark lawyerly brilliance that supported the deconstruction of the Weimar Republic and hastened the rise of an authoritarian, and then totalitarian dictatorship. One of these was the use of external threat to justify a “state of exception,” followed by a transposition of the external threat to the internal political dynamic. This was done with a purpose: collapsing the careful allocation of powers in the Weimar Constitution in favor of one all-powerful Leader. John Yoo would call him the “commander in chief.” Curiously, for John Yoo the commander-in-chief has narrowly circumscribed powers when he’s a Democrat, and robust and dictatorial authority when he’s drawn from John Yoo’s own political party. But then a foolish consistency is the hobgoblin of little minds, as Emerson teaches us.

Another Schmittian trope used by Yoo is the friend-foe distinction. It posits that if you can isolate your foe as an “enemy,” you would be justified in stripping him of all rights and privileges, including any legal protections. Thus those interned in the system of concentration camps which opened as early as 1933 had no more right to be heard in court than—in John Yoo’s thinking at least—the detainees in Gitmo. Note that Padilla is, throughout this piece, an “al Qaeda agent” who was “plotting a dirty bomb attack.” And the people criticizing Yoo are the “anti-war left.” Yoo is extremely faithful to the basic techniques of the Schmitt approach. But more than two-thirds of the nation oppose the torture techniques that John Yoo pioneered with his memoranda. If that’s the “anti-war left,” then the country has seen a seismic shift in its politics. This is a conservative country, and John Yoo and his thinking are alien to traditional conservatism.

But we should focus on the Yoo technique. He stigmatizes Padilla and builds him up as a threat. But in fact, as one of the prosecutors confirmed to me and the judge stated at sentencing, there was no viable evidence to sustain suggestions that he was involved in a plan to attack Americans with anything, much less a dirty bomb. Padilla is not an innocent lamb. At his trial, prosecutors offered persuasive evidence linking him to terrorist cells and they showed that he obtained training in terrorist tactics. The coup de grâce in their evidentiary chain was a membership application form hauled off a truck in Afghanistan that linked Padilla to al Qaeda. So Padilla was justifiably recognized as a threat and seized. But then the propaganda machine went into overdrive, grossly overstating the case against him.

John Yoo told us that Padilla was going to be sentenced to life in prison. Evidently Yoo’s skills at reading the future are failing him. Of course in the Yoo vision of justice, the judge is supposed to do exactly what the administration’s Justice Department tells him to do. When the courts demonstrate independence, Yoo fumes. And yesterday the judge handed down a setence, which was a sharp rebuke to the Government and to John Yoo. Padilla got a sentence of seventeen years. The judge’s remarks are worth considering:

“There is no evidence that these defendants personally maimed, kidnapped or killed anyone in the United States or elsewhere.” Cooke said she was giving Padilla some credit—over the objections of federal prosecutors—for his lengthy military detention at a Navy brig in South Carolina. She agreed with defense lawyers that Padilla was subjected to “harsh conditions” and “extreme environmental stresses” while there.

“I do find that the conditions were so harsh for Mr. Padilla … they warrant consideration in the sentencing in this case,” the judge said.

Note that the judge is not saying that Padilla is an innocent, she is saying that he was clearly mistreated by the Bush Administration and that his case was overblown and hyped to the media. And why was that? Why the hysterical claims from Attorney General Ashcroft? He announced Padilla’s arrest during a visit to Moscow, and I remember it so well because I was there—physically present—as he announced it in hurried, bubbling tones. He was eager to get the news out to the media. And what was that all about? Again, not concern for the safety of Americans, I think. Rather it was an attempt to whip people up, to instill fear, not the prudent, careful approach that a serious law enforcement officer would take. In sum, it was politics in the Rovian sense.

And Yoo continues to hammer home his war-as-politics message as his op-ed develops. He tells us that only the Bush Administration “gets it” and demonstrates the necessary resolve to pursue this war. He simmers with contempt for the Clinton Administration and its decision to pursue matters through a law-enforcement paradigm. But wait a minute: what was going on in the Padilla case in Miami that Yoo just finished discussing? It was the Bush Administration pursuing matters through a law enforcement paradigm. Hmmm. Something’s off message here, isn’t it? And let’s think back to those cowardly Clintonites and their halfhearted measures against Islamic terrorists. Was it a traditional law enforcement paradigm when Clinton ordered cruise missile attacks on Osama bin Laden’s base in Afghanistan and terrorist targets in Sudan in 1998? Hardly. And what was the reaction of John Yoo and his friends at the Journal at the time? The terrorist threat was much overblown, they said, this was all just Bill Clinton trying to take our minds off of matters that really count. You know: the Monica Lewinsky scandal. And recall, as the 9/11 Commission reminded us, Bush took office and received in the first weeks a plan for action against al Qaeda and its bases in Afghanistan. What was the Bush Administration’s reaction to that plan? We know the answer from their own senior counterterrorism official, Richard Clarke. He tells us the plan and its prioritization of a terrorist threat was met with derisory comment and inaction.

Surprising as it may seem, there is a thread of consistency here. What motivates John Yoo and his friends is partisan politics, 24/7. There is nothing that cannot be manipulated in the interests of some good electoral gains.

In the core of his op-ed, Yoo tells us that he was the Justice Department official who gave the opinion that Padilla could be detained based on the suspicions that the Bush Administration harbored. He presents a parade of horribles—what would happen if the Government could not apprehend someone suspected of being prepared to plant a dirty bomb in a U.S. city? Yoo presents himself as the legal Jack Bauer, saving America from another plot with his legal daring.

Yoo gives us a straw man. The arrest and detention of Padilla are not the issue. I don’t think anyone seriously challenges the Government’s right to apprehend and hold Padilla on the basis of the information it had. Indeed, it had a duty to do exactly that.

The question was not about Padilla’s apprehension, it was about the conditions of his treatment. Those conditions including sustained sensory deprivation, stress positions and sensory shock treatment that were tantamount to torture, and had long-term psychologically debilitating effects on Padilla. As one psychologist testified at his trial, the Jose Padilla who sat in that courtroom was pretty much a hollow shell whose insides had been sucked out by a barrage of treatments designed to destroy him as a rational, self-actuated human being. All that occurred without any charges being brought against Padilla, a U.S. citizen. And all of it could not have occurred without John Yoo and his memoranda on a number of themes, all of which served the same objective: to give the president, as commander-in-chief, unrestricted power in dealing with war-time detainees. The power to destroy a human being, in fact. In this effort, Yoo consciously collapsed the ultimate taboo, against torture.

Yoo argues that he has immunity for his conduct. He claims he was a rank-and-file lawyer at the Justice Department doing his job, so he should be protected. Given the attitudes prevailing among Bush-appointed judges in the United States today, he is likely to prevail in this view. The Bush judiciary is eager to foreclose any inquiry into the Bush administration’s torture policies. But to do this, they have to dramatically inflate the scope of the grant of immunity. Essentially they have to find that torture is within the normal scope of responsibilities of Government actors, a conclusion that is forbidden by the Constitution, federal law, and international conventions sponsored and promoted by the United States. That would be a severe legal contortion, but does anyone doubt their willingness to go there? They will do it in the service of their leader, and they will claim it is for the nation’s good.

Of course, there was a time when American justice held clear-cut and starkly different views on precisely these issues. In United States v. Altstoetter, two Justice Department lawyers were charged with criminal conduct for dispensing legal advice that was used to facilitate the creation of a renditions program. In giving this advice, they misconstrued the Geneva Conventions of 1929 and the Seventh Hague Convention on Land Warfare. At trial, they produced plausible arguments for their positions—indeed, arguments far more convincing than any that John Yoo can muster. The result? They were sentenced to prison for ten years, less time served. The Justice Department lawyers in question served in the German Government in the years leading up to and following World War II. If the principles that the United States announced in Altstoetter were applied to John Yoo, he’d be in serious trouble.

John Yoo tells us that if this case is sustained, it will have one clear-cut consequence: it will lead “to more mediocrity in our bureaucracies.” Can anyone imagine a bureaucracy that is more hack-ridden than the present one? And would it not indeed be a compliment to call John Yoo “mediocre”?

I think, to the contrary, if this case is sustained, it might lead to something which the Bush Administration very much fears: accountability. Remember how Bush campaigned through 2000, deriding the lack of responsibility in Washington and promising to introduce a new culture which would set things aright? Well, the judge hearing Padilla v. Yoo will have an opportunity to make a statement on just that issue. Can a civil servant purporting to act in our name enable egregious crimes and walk away scot free? While this is a civil and not a criminal suit, Yoo’s work that enabled a regime of torture and disappearances sits right at its heart.

In any event, however, John Yoo has not done a very able job of defending himself. There’s bit of common wisdom among lawyers that says “A lawyer who defends himself has a fool for a client.” Mr. Yoo’s op-ed can serve as proof of that advice.

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