Into the rabbit hole (updated).
One of John Yoo’s fateful 9/11-justifies-all memos was released this week, as a result of a Freedom of Information Act lawsuit filed several years ago. Lowlights from the Washington Post:
“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,” Yoo wrote. “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.”
Interrogators who harmed a prisoner would be protected by a “national and international version of the right to self-defense,” Yoo wrote. He also articulated a definition of illegal conduct in interrogations — that it must “shock the conscience” — that the Bush administration advocated for years.
“Whether conduct is conscience-shocking turns in part on whether it is without any justification,” Yoo wrote, explaining, for example, that it would have to be inspired by malice or sadism before it could be prosecuted.
Yoo, who teaches law at Berkeley, still defends his reasoning (which has significantly changed since the Clinton administration).
“Far from inventing some novel interpretation of the Constitution,” Yoo wrote, “our legal advice to the President, in fact, was near boilerplate.”
And yet the memo was abrogated by the Office of Legal Counsel just nine months after it was written. (Wonder why?)
Marty Lederman will be dissecting the memo at Balkinization. His preliminary thoughts on how the memo came to be issued under Yoo’s name:
Did John Ashcroft or Jay Bybee sign off on this memo? Did either authorize Yoo to issue it without any review by the AAG or AG? If the answer to both questions is “no,” then why did John Yoo think he was empowered to issue it? Why did Jim Haynes accept it as the official view of the Office of Legal Counsel? Didn’t anyone check with [correction: Bybee] and/or Ashcroft? If not, why not?
This was, in my view, a serious abuse of authority and/or violation of protocol. And it demonstrates exactly why it is so important to abide by such procedural norms — so that an unconfirmed, rogue deputy in OLC can’t just go around offering the most important and ground-shifting legal advice in the Executive branch without that advice having been thoroughly scrubbed and critiqued by others who are more accountable and more seasoned.(…)
From all that appears, John was not acting entirely on his own with respect to the March 14th Opinion. Section II of the memo is where much of the most astounding legal analysis appears. In that section, John concludes that the federal statutes against torture, assault, maiming, and stalking (i.e., threats) simply do not apply to the military in the conduct of war, by virtue of four “canons of construction”: (i) that criminal statutes should not be construed to apply to the military during war; (ii) that they should not be construed to apply to the sovereign more broadly; (iii) that they are superseded as to the military by the Uniform Code of Military Justice; and (iv) of course, that if Congress did mean for them to apply in this context, it would be a violation of the Commander in Chief’s prerogatives.
The memo’s application of these canons to these statues (especially the torture statute) is, in my opinion, fairly outrageous, for reasons I’ll discuss in further posts. And this section is the heart of the Opinion — the belts and suspenders in support of the basic conclusion that the military need not worry itself about all of these (and other) criminal laws in interrogation of al Qaeda suspects.
Here’s the remarkable thing: Page 11 of the Opinion states that “[t]he Criminal Division concurs in our conclusion that these canons of construction preclude the application of the assault, maiming, interstate stalking, and torture statutes to the military during the conduct of a war.”
The head of the Criminal Division at that time? Current Homeland Security Secretary Michael Chertoff.
Here is an audio clip from John Yoo’s appearance on a Chicago panel discussion, in which he argues that– depending on the president’s motives–there is no treaty than can bar the president from having a suspect’s child’s testicles crushed.
Does this man have tenure?
Update: Esquire nabbed an interview with Yoo, who responds to the latest controversy over his conscience-shocking memos.
There is an article in Vanity Fair, “The Green Light” by Phillippe Sands (May 2008) that tries to trace the authorization of various legal opinions about torture in general and about the specific measures approved for Guantanamo. His theory is that higher ups (Rumsfeld, Cheney with Addington) set off the stream but worked very hard to have it appear that the requests and the approvals were coming from the ground up. Very much worth working your way through. Sands seems to have interviewed many of the principles here and it appears (sometimes the stream is hard to follow) that regular military at the Pentagon (e.g., General Meyer) were out of the loop on this.
I’ll try to find the site later and post it.
The Phillippe Sand’s article may be found here: http://www.vanityfair.com/politics/features/2008/05/guantanamo200805?printable=true¤tPage=all
As to the question of whether John Yoo has tenure, the answer is Yes. He got tenure in 1999.
I’ll never understand a moral system that concludes that it is wrong to slap men in interrogation rooms but sometimes right to blow their brains out on the battlefield.
I have difficulty believing that you could never understand this. Hint: the man in the interrogation room is physically under the control of the interrogators and does not pose an imminent threat to them. But even if we could justify the use of force because we can plausibly believe that the man being interrogated has information we would like to have and force is the only way to get it (an incredibly dubious belief), we still need to grapple with the fact that the overarching theme of the treatment of POWs and combatants isn’t gentility — it’s mutuality. As we do to them, they do to us and vice versa.
I see that John Yoo ((A.B., Harvard University (1989)
J.D., Yale University (1992)) began his career as Senate Judiciary Committee counsel, under Sen. Joseph Biden, Democrat, in 1995. Perhaps Sen. Biden didn’t vet Yoo sufficiently, although he (Yoo) has changed his position since then.
Ann: I take it then that you are a pacifist? I respect absolute pacifists; that’s a hard road to travel, although I completely disagree with them.
Barbara: So do you believe that if we stop waterboarding enemy combatants, the islamo-fascists will stop sawing off people’s heads on international TV, or stop explicitly targeting women and children with suicide bombers? I know you know the answer to that – it was a rhetorical question. Your theory of mutuality I find somewhat dubious; can you support it by any kind of hard ststistics?
Ah, yes … the end justifies the means.
Sunovagun; I forgot all about that ultimate justification for evil in the name of good.
Bob: So do you believe that if we [continue] waterboarding enemy combatants, the islamo-fascists will stop sawing off people’s heads on international TV, or stop explicitly targeting women and children with suicide bombers? I know you know the answer to that – it was a rhetorical question.
No, they will not stop doing what they do if we stop waterboarding; they will only stop when they believe that they cannot win this war. What was your point, again?
Bob,
It seems to me that although treating “enemy combatants” humanely will not turn Islamic extremists into friends, it may make a difference in whether people all over the world who aren’t extremists respect the United States and are willing cooperate with us against those who are.
Thank you Elizabeth Brown for finding the Vanity Fair article. Yoo does appear there, but somewhat less prominently than on this post. Why don’t y’all go read it and report back!
David:
I understand your point, but I reject it out of hand. Anyone who understands the islamo-fascist agenda and still doesn’t know whether or not to assist the United States is, in my estimation, beyond hope. I leave them to the tender mercies of the I-F’s.
Sorry about the excess of italics; I screwed up the italic end flag.
We have a problem with these kinds of discussions because of the way people have come to use words primarily for their emotional content. The emotional content of a word is of course part of its meaning. But when people use words primarily for their emotional content they tend to go on to claim that the word means what they feel it means.
A case in point if “Islamic Fascism”. Fascism is a technical name for a kind of radical nationalism. Fascist movements are also totalitarian and because they can be so destructive they have an additional very negative emotional content.
But since fascism is a kind of radical nationalism, there can be no such thing as Islamic Fascism. There could be an Iraqi fascism or an Egyptian fascism, but not Islamic fascism because by definition Islam is not national in its base. Linking Islam to fascism treats a disparate and heterodox religion as though it is a cohesive and clearly defined nationality, which it is not.
Individual Islamic governments tend to be totalitarian however, and look “fascistic” to people who don’t know much about them. So people have cobbled together little threads of resemblances to create a fantasy of “Islamic Fascism” as some sort of major and imminent threat to the “Western World.”
A closely related case is the expression “time of war,” which was used by Professor Yu to invoke extraordinary powers for the President as “Commander-in-Chief.” While the United States is involved in a war in Iraq (that is that we are involved in a civil war that is happening in Iraq) we are not in a “state of war” in the United States any more than we were in a state of war when we invaded Grenada, Panama, or even when we were involved in Viet Nam. For the last 150 years, modern states that are in states of war have war time economies and conscription. Our military actions in Iraq do not merit either of these so the pretend state of war, which is actually designed to give the President war time powers that he neither needs nor deserves needs a large pretend enemy to sustain it.
The current torture discussion then exists in the context of the pretend state of war against the pretend global enemy. The magnitude of these two balloon animals seem to require that we put aside our normal moral revulsions and our good practical considerations against the use of torture as such. We are asked to consider “ticking time bombs” along with secret global conspiracies. But there is an additional emotional element here. For all of their supposed technical arguments about the efficacy of torture, torture proponents also view it as a justified punishment for our global enemies. While discussions of torture in the past have explicitly separated the question of torture as a technique from the question of torture as a punishment, they tend now to be explicitly combined. The typical rejoinder of the modern torture supporter to their modern opponent is “why should we care if these brutal enemies suffer?”
The classic argument for torture concerns the ticking time bomb. Of course, it is claimed, one would torture someone to find the location of the ticking time bomb.
But a problem arises when on starts torturing people to find out if there might be a ticking time bomb or if they might know someone who knows someone who might know something about a time bomb. In this case, one may be torturing someone who is innocent and torturing them to find out whether or not they are innocent. And when we are asked to turn our heads aside to this because we are in a state of war, we are simply being asked to condone the torture of innocent people.
We know as a point of fact that any legal or justice system is going to sweep into it the innocent as well as the guilty. But this is why we have legal safeguards including laws against torture as such. Because once one removes the idea of torture as punishment (since this is what cruel and unusual punishment is), even if one somehow needs to torture people on can only torture people that on already knows for a fact knows where the ticking time bomb is.
Unfortunately, we seldom get even this far in the discussion. American conservatism isn’t a philosophy; it’s an attitude. People who think that Islamic Fascism is sheer obscurant nonsense are either naive or traitors. People who think that there is no state of war are denigrating our soldiers in Iraq and are comforting the enemy. And people who say that humans always have a good reason for whatever they do; that every abortion, theft or murder is back by a Very Good Reason; that the current arguments presented for torture are nothing new and that the old moral injunctions against it continue to hold are told that they are no more than weak limp wrested American hating towel head lovers who don’t have the right (in the sense of Right) attitude.
Unagidon:
You said, among other things,
“Unfortunately, we seldom get even this far in the discussion. American conservatism isn’t a philosophy; it’s an attitude. People who think that Islamic Fascism is sheer obscurant nonsense are either naive or traitors. People who think that there is no state of war are denigrating our soldiers in Iraq and are comforting the enemy. And people who say that humans always have a good reason for whatever they do; that every abortion, theft or murder is back by a Very Good Reason;”
Except for the American conservatism isn’t a philosophy; it’s an attitude. part, I agree with the above. Now that’s progress!
“Except for the American conservatism isn’t a philosophy; it’s an attitude. part, I agree with the above. Now that’s progress!”
It would be progress if you agreed that the rest of it applied to you.
The reason that force plays such a role in these affairs is that only force will keep the tissues of lies together.
But tell me this; do you think that we should ever suffer risks for the sake of principle (by opposing torture on principle)? Or is principle supposed to be risk free?
Unagidon-
“Fascism is a technical name for a kind of radical nationalism. ”
That is a very unconventional definition – could you please provide a link for that definition? Your definition seems very similar to Italian Fascism or Fascismo as outlined in Gentile’s famous “La dottrina del fascismo” and found its expression as the PNF which ceased to exist in 1943. Do you therefore disagree with Umberto Eco’s definition of Fascism?
Dear MAT,
No, I would agree with the historian John Lukacs’ definition of fascism, which I can’t link to but which is outlined in several of his books. But he thinks that German National Socialism wasn’t fascism and I would agree with him there too. Since people in the US usually think of Nazis as fascists, it’s hard to talk about differences between breeds of radical nationalists, which is a pity, since it makes it hard to look at certain currents that have existed in the US (and still do).
I wish we would dump the word fascism, actually, since it has become so emotionally loaded. Which was just my point.
Unagidon-
Interesting. Perhaps being born in Italy has influenced me here, but I personally think of the nationalism component of Fascism as a uniquely Italian construct with the restoration of the Imperium Romanum and all of that. I didn’t even realize there are some who consider the National Socialists fascists. Here is a link to Eco’s definition of “Eternal Fascism” in case anyone has any interest:
http://interglacial.com/~sburke/pub/prose/Umberto_Eco_-_Eternal_Fascism.html
I’m with Unagidon when it comes to the use of the term fascism. As I have always understood it, fascism is a military oriented, authoritarian government that puts a premium on national identity and national industrial power. It seems almost sui generis to European countries in the early 20th Century, but pre-war Japan probably also qualifies. There are better descriptors for most other forms of authoritarian government. Fascist has become a way of expressing disdain or disgust without conveying any real meaning.
It’s reasonable to expect that radical nationalism in a given country will be influenced by what is significant in that country’s history (the thing that the nationalists think give that country its distinction). Italy has a lot to choose from, but the glories of Rome were certainly to trump everything else. Germans had the pagan volk so despite creating a state that was a lot more powerful and ruthless than the Italian state was under Mussolini, the German nationalists appealed to an more amorphous concept of race.
There are nations in the Islamic world and each of them can and sometimes have appealed to a local nationalism. But the idea that Islam itself yields this sort of nationalism is a Western fantasy.
Barbara –
My problem is I find a contradiction in saying that a terrible act, but one that is less terrible than another one is somehow worse morally than the more terrible one. Both acts are objective realities, and to say that the lesser is worse than the greater makes no sense to me. Something is wrong with that moral system somewhere
I suspect that ancient principle “the end does not justify the means” needs to be refined, but just how, I don’t know.
Bob–
No, I’m not a pacifist, but sometimes I think I should be.
Unagidon:
You asked,
“But tell me this; do you think that we should ever suffer risks for the sake of principle (by opposing torture on principle)? Or is principle supposed to be risk free?”
That is an excellent question, and I’m surprised no one here has ever asked it. Its kind of a gutsy question into the bargain. My answer, for what its worth, is, it depends on the risk(s). For example, I wouldn’t risk my granddaughter’s well being for the sake of principle, but I might risk my financial status. I’m not sure what Christ would think of my answer, but it is what it is.
Ann: I believe that, based on your your various posts I’ve read here that you are a kind and good-hearted person, as well as being both smart and shrewd. You may be drawn to pacifism because of its all-encompassing solution and its stringent moral demands, but you may want to proceed with caution in that direction…
Bob ==
It’s you who are kind :) I’m really not a pacifist largely because I don’t know that it has ever resulted in less violence in the long run than violent self-defense has. However, I don’t know of any hard evidence about this one way or another.
I should add that non-violent protest is not the same thing as pacifism, and non-violent protests have been notably successful in changing societies internally. But that is not at all the same thing as defending oneself from an external threat or aggressor.
One thing I’m sure of is that gratuitous violence is never right, and if torture doesn’t work, then it is gratuitous and, therefore, morally wrong. But how could that ever be established?