No Comment — January 30, 2009, 2:12 pm

Yoo for the Defense

John Yoo is at it again. In yesterday’s Wall Street Journal, the indefatigable advocate of crushing the testicles of small children to extract actionable intelligence launches a full frontal attack on President Obama. What’s Obama’s offense? He banned torture. Of course, every U.S. president has banned torture, with one solitary exception: George W. Bush, acting on the advice of John Yoo. Obama, Yoo says, has put the safety of Americans on the line: his torture ban will “seriously handicap our intelligence agencies from preventing future terrorist attacks.” Never mind, of course, that no evidence has been advanced of a single instance in which the use of torture produced intelligence that prevented a future terrorist attack, while detailed and specific evidence has now been put forward that torture produced bad intelligence used to justify the invasion of Iraq. Those are irritating details that detract from a nice narrative.

So what’s all this about? Is Yoo suffering from withdrawal pangs coming off an addiction to torture? Or is he a “sadist” as MSNBC’s Keith Olbermann argues? I’ve followed John Yoo and his writings with some care for a while now, and I think I finally understand what this is about. Namely, a pending probe by the Justice Department’s Office of Professional Responsibility (OPR) is looking at serious ethical issues surrounding the issuance of Yoo’s legal opinions.

But the OPR probe is far from Yoo’s only or even most pressing worry. The likelihood that he will face a criminal probe and then possibly prosecution is growing. Susan J. Crawford, the Cheney protege tapped as the senior Bush Administration official to oversee the Guantánamo military commissions, publicly admitted in an interview with Bob Woodward, that at least one of the detainees had been tortured through the application of an interrogation regime that had been approved by the White House. In their exit interviews, both President Bush and Vice President Cheney were emphatic that in authorizing torture, they relied on the advice of their lawyers, meaning John Yoo. But in the ultimate act of ingratitude, Bush left office without issuing the anticipated blanket pardons to his torture team. NATO allies and United Nations officials are reminding the new Obama Administration that it has a solemn obligation under article 4 of the Convention Against Torture to begin a criminal investigation into how the United States came to use torture as a matter of official policy. And public opinion has changed, with a clear majority of Americans now favoring a probe into the Bush Administration’s use of torture techniques.

Yoo cannot be oblivious to all of this. And indeed, his column in the Wall Street Journal and his presentations elsewhere tell us exactly what the defense will be. At its core is the argument that, no matter how mistaken, John Yoo acted in good faith when he issued the torture memoranda. He truly, sincerely believes the analysis of law that is presented in those memos. That’s why from April 2004 forward, Yoo has been unwavering in his adherence to the views put forth in those memos.

It’s very difficult to penetrate Yoo’s claims as to his subjective understandings—one fact that makes the good-faith belief defense so attractive. But we see in his current column and other recent statements tale-tell signs that suggest this defense is dishonest. The bottom line is this: how could someone who earned a law degree from Yale and became a tenured member of the law faculty at Berkeley, one of the nation’s most prestigious law schools, appear to be so incredibly ignorant?

Immediately after reading Yoo’s memos it struck me that they were the product of reverse-engineering. The way they drifted through issues, the bizarre choice of precedent, the curious misreading of the Constitution in which the clause granting to Congress the authority to address questions surrounding detainees simply disappears–and the equally tendentious and absurd readings of international conventions and precedents–could be explained if you imagined that Yoo had been approached and told to craft a memorandum that legalized practices already in place.

If that were the case, those asking for the memo were looking for a get-out-of-jail-free pass from the Department of Justice, and Yoo’s memos were supposed to provide it. Viewed in this light, what Yoo crafted makes perfect sense; otherwise they strike me as impossible to explain. Best to just stumble through the available legal authorities and simply miss most of them, and misunderstand most of what was left. Of course this means his memos were cover-your-ass specials, and as such they are probably not effective to provide the sort of legal shield that those who sought them expected. More menacingly for Yoo, a future prosecutor might very well take the view that if Yoo did craft the memos for the explicit purpose of covering the torture project with impunity and pushing it forward by overriding the judgment of serious lawyers at the Pentagon and CIA, then Yoo made himself a part of the torture conspiracy; that he was an accessory after the fact goes without saying.

But look closely at the latest Yoo column. We see that he tenaciously defends and repeats arguments presented in his memo that even the Bush Justice Department agreed were ludicrous. He alludes to techniques used by our allies the United Kingdom and Israel which he claims now Obama rejects. What on earth is this about? If we recall his memo, one of its more bizarre passages involves a European human rights court decision in which five specific techniques used by the U.K. on suspected Irish terrorists during the “troubles” are classified as “cruel, inhuman and degrading” rather than torture. Thus, Yoo argues, these techniques have passed international muster and are fine. That’s the sort of answer which would get a law student a failing grade. The European human rights court subsequently came to a totally different view, denouncing all these techniques and the United Kingdom discontinued their use, agreeing that they were unlawful. So much for the British techniques that Yoo would have the U.S. embrace—Britain agrees that they were counterproductive and in fact that their use produced bad intelligence and resulted in wrongful convictions of several Irish suspects that had to be overturned. Of course, Yoo doesn’t bother his reader with any of these trivial details. To the contrary, here’s how he characterized a jurisprudence that conclusively outlawed the “five techniques:”

International decisions can prove of some value in assessing what conduct might rise to the level of severe mental pain or suffering. Although decisions by foreign or international bodies are in no way binding authority upon the United States, they provide guidance about how other nations will likely react to our interpretation of the CAT and Section 2340. As this Part will discuss, other Western nations have generally used a high standard in determining whether interrogation techniques violate the international prohibition on torture. In fact, these decisions have found various aggressive interrogation methods to, at worst, constitute cruel, inhuman, and degrading treatment, but not torture. These decisions only reinforce our view that there is a clear distinction between the two standards and that only extreme conduct, resulting in pain that is of an intensity often accompanying serious physical injury, will violate the latter.

Got that? In other words, we’ll cherry-pick the international authorities and misrepresent what they say in order to justify our view that these abusive techniques are just fine. Yoo plays the same game of legal three-card monte with his description of Israeli techniques. He mischaracterizes the 1999 Israeli Supreme Court decision, for instance. The Israeli Court in fact banned many of the same techniques in just the same way, but from reading Yoo you’d think it was a green light for the torture and abuse of prisoners.

Considering that Yoo has been excoriated by his academic colleagues for the sloppiness of his reasoning and for his mischaracterization of the authorities he cites, why does he persist? The only explanation I can put forth is that he needs to preserve his good-faith defense–that he may be wrong, but his error is held in good faith.

As Major Matthew Alexander points out, more than three thousand Americans died and tens of thousands of others were maimed or wounded as a result of the Bush Administration’s decision to introduce torture. Like no other misstep, it fueled the insurgency in Iraq and recruited thousands to its cause. Does John Yoo recognize that he has blood on his hands? Certainly not. Maybe he sleeps as comfortably as George W. Bush. Or maybe his consuming interest right now is in protecting himself from prison time. And he’ll have to do a much more convincing job if he wants to succeed at that.

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