Akkam's Razor Radicalized on the internets since 1996.

I’ve wanted to write something about John Yoo and the torture memos, but it’s depressing and secondly I don’t like to write things that the more well-read political junkies already know, and I’m not sure how to sum up the intricacies of the entirety of Yoo, Bush, and the law in a way that will challenge any of the uninformed, misinformed, or Bush cheerleaders.   Regardless, I’m tackling it anyway.

John Yoo, an Ivy League educated scholar, American Enterprise Institute scholar and fellow, current professor at UC Berkley, and former clerk for two Supreme Court Justices, has been a central figure in many of the central rethinking controversies of President Bush’s administration, including (via ThinkProgress):

 The New York Times reports today that soon after 9/11, “President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying. 

Yoo Argued Interrogation Wasn’t Torture Unless It Resulted In Organ Failure or Death: Yoo also wrote an infamous torture memo which argued that interrogation techniques only constitute torture if they are “equivalent in intensity to ¦organ failure, impairment of bodily function, or even death.  The Bush administration was forced to repudiate that memo once it became public. Yoo continues to defend it, saying the new torture definition “makes it harder to figure out how the torture statute applies to specific interrogation methods. 

Yoo Argued President Bush Didn’t Need To Ask Congress Before Invading Iraq: Yoo has also argued that “President Bush didn’t need to ask Congress for permission to invade Iraq.  The 1973 War Powers Resolution, according to Yoo, is “irrelevant.  Secretary of State Condoleezza Rice echoed the argument when she told a congressional committee that “the president has the right to attack Syria, without congressional approval, if he deems that a necessary move in the war on terror. 

Yoo Argued Geneva Conventions Do Not Apply to Detainees: Thanks to Yoo‘s legal work, the Bush administration justified the creation of a new category of detainees: “illegal enemy combatants.  “Yoo and other Administration lawyers began advising President Bush (after 9/11) that he did not have to comply with the Geneva Conventions in handling detainees in the war on terror,  the New Yorker reported earlier this year.

Each of these are remarkable Presidential power grabs, all seeking to claim new authorities under the guise of War-Time powers, despite their being no war declared by Congress.     In fact, as spelt out in the Yoo Doctrine, it is the President who decides we are at War, and not Congress, despite all history to the contrary.  Yoo further limits the power of Congress by stating that their only redress it to cut off funding, which brings out cries of failing to support the troops.

This remarkable claim can draw its inspiration from Richard Nixon’s belief that “it’s not illegal if the President does it , a philosophy in alignment with Dick Cheney’s (a Nixon Administration alum) desire to restore Executive Branch power and authority to Pre-Watergate levels.   In scholarly corners, this is often referred to as the Unitary Executive Theory, or the Imperial Presidency.  

Even more recently, we see that a recurring theme that the President is not accountable to the electorate, with accountability only being delivered at the ballot box, a theory which has been referred to as a Constitutional Dictatorship.   One can see how this informs this Administration’s beliefs as evident by Dick Cheney’s response of “So?  when presented with the fact that an overwhelming plurality of the country opposes the handling of the Iraq War.

Indeed, one can see this evident in many of Bush’s signing statements, a separate and substantial subject of controversy, and the oft quoted claims of Presidential power under throughout the Constitution, particularly Article II and Article X.

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people[.]

Most troubling, the authorization underlying these interpretations comes not from the Legislative or Judicial Branches, but rather from the Justice Department, from the hand of John Yoo, whose reported nickname from John Ashcroft is “Dr. Yes .   Crafting  legal opinions guaranteed to be in line with the Administration’s preferences to justify Administration is most certainly a breach of ethics.  

As Scott Horton most clearly demonstrates in “Deconstructing John Yoo  in Harpers, Yoo views warfare as a continuation of politics, framed by an out-of-context quote, which appears in Yoo’s ‘defense’ from a failed lawsuit from Jose Padilla in the pages of the Wall Street Journal:

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.

When we specifically look at the contents of the just released March 2003 John Yoo memo [pdf] which essentially provided the legal basis for US government sanctioned torture.   All of the limitations, by practice, legislation, and treaty are swept away by the war time powers inherent in the President’s role as Commander-in-Chief.   From the Washington Post:

Sent to the Pentagon’s general counsel on March 14, 2003, by John C. Yoo, then a deputy in the Justice Department’s Office of Legal Counsel, the memo provides an expansive argument for nearly unfettered presidential power in a time of war. It contends that numerous laws and treaties forbidding torture or cruel treatment should not apply to U.S. interrogations in foreign lands because of the president’s inherent wartime powers.

“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.

When you look at this mindset, that the President has unrestrained power in a time of war, has been the prevailing theme of the Bush Administration post 9/11, including the ability to ignore laws at their whimsy   We repeatedly hear that this is a nation of laws, not of men, yet often those out the top answer to neither.