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John Yoo and the Self-Satisfied Defense

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John Yoo, the primary author of the legal memoranda that gave President Bush the power to detain and torture anyone he likes, has written a slimy op-ed in the Wall Street Journal defending his ethical lapses. I know that Mr. Yoo is a big-shot Berkeley Law professor (and I’m just a 22-year-old nothing), so for fear of sounding ignorant I suppose I won’t give his article too much time. But it does beg for comment.

He begins, detailing the marvelous gift he bestowed upon President Obama:

Barack Obama may not realize it, but I may have just helped save his presidency. How? By winning a drawn-out fight to protect his powers as commander in chief to wage war and keep Americans safe.

He sure didn’t make it easy. When Mr. Obama took office a year ago, receiving help from one of the lawyers involved in the development of George W. Bush’s counterterrorism policies was the furthest thing from his mind. Having won a great electoral victory, the new president promised a quick about-face. He rejected “as false the choice between our safety and our ideals” and moved to restore the law-enforcement system as the first line of defense against a hardened enemy devoted to killing Americans.

This is confusing for so many reasons. As I’m sure Mr. Yoo knows, President Obama has endorsed kidnapping “terrorism suspects” and holding them indefinitely at various sites around the globe. He’s opposed to any further investigation into our torture policy (something for which I imagine Mr. You would be quite grateful), and has, in fact, expanded the legal black hole at Bagram Air Base in Afghanistan, where no defense attorneys, judges or prosecutors can set foot.

Mr. Yoo mentions that President Obama has ordered Guantanamo closed (actually, Obama hasn’t closed it yet, and probably never will), but no other evidence to suggest President Obama has endorsed a meaningful review of executive power. I just don’t understand how one promise that anyway went unfulfilled  means Obama is “[determined] to take us back to a Sept. 10, 2001, approach to terrorism”, as Yoo later writes.

Then Mr. Yoo complains of being “hounded” in the form of a superficial Office of Professional Responsibility (OPR) review. I admit I have not read the report, but Mr. Yoo claims:

OPR’s investigation was so biased, so flawed, and so beneath the Justice Department’s own standards that last week the department’s ranking civil servant and senior ethicist, David Margolis, completely rejected its recommendations.

Which says more, perhaps, about the Office of Professional responsibility than it does about the tactics which Mr. Yoo authorized, which include being forced to stand for weeks while shackled to the ceiling. And, of course, Mr. Yoo doesn’t deign to mention that the very “enhanced interrogation techniques” that he advised Presidents Bush and Obama to use, and defends in this article, are unconstitutional according to the Supreme Court.

Mr. Yoo lauds himself for sitting through the tedious hearings, even though he was under “no legal obligation to do so” and even though they had no impact on his lucrative professional career. Why should he make such a non-sacrifice?

I did not do this to win any popularity contests, least of all those held in the faculty lounge. I did it to help our president—President Obama, not Bush. Mr. Obama is fighting three wars simultaneously in Iraq, Afghanistan, and against al Qaeda.

Forgive me, but if one of the wars is specifically against al Qaeda, whom are we fighting in Iraq and Afghanistan? Are those merely “wars” in the general sense of the term, with no clear enemy or end? If they are, Mr. Yoo’s lengthy and repeated defenses of executive rule-by-decree during “wartime” means he advocates for a vast and permanent expansion of the President’s power. I don’t get it. Is that what he’s trying to say?

He ends his “op-ed piece”, which was really a self-serving polemic, with a bizzare example from five years ago:

n 2005, a Navy Seal team dropped into Afghanistan encountered goat herders who clearly intended to inform the Taliban of their whereabouts.

The team leader ordered them released, against his better military judgment, because of his worries about the media and political attacks that would follow. In less than an hour, more than 80 Taliban fighters attacked and killed all but one member of the Seal team and 16 Americans on a helicopter rescue mission.

So, according to John Yoo, those few American deaths justify the indefinite detention of any and all goathearders (and anyone else we might happen not to trust). Do not bother asking Mr. Yoo why it is we’re in Afghanistan in the first place, who it is we’re fighting, or what our ultimate goals are. That’s not his department.

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Written by pavanvan

March 21, 2010 at 11:03 pm

The Times, Habeas Corpus, and those Bad Ol’ Terrorists

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The Times continues its faux-reporting over the “controversy” that has erupted over whether we should act like tyrants and keep “terror suspects” in cages indefinitely without trial, or act like decent adults and follow the rule of law. Previously, The Times came out in support of the former option, happily announcing that “Detainees will be Held, but not Tried” – but as the political winds shift, so do does the leading newspaper, which now plumps for the worst aspects of both, much like President Obama. They even invoked the mysterious “experts”, who, apparently, do not include the Supreme Court.

As Jane Mayer expertly analyzed in a recent New Yorker, the Justice Department is now in a state of civil war. One one side, Attorney General Eric Holder, who advocates that “terror suspects” be vetted in a court of law to determine what, if anything, they’re guilty of. He is joined by a majority of our Supreme Court, human-rights activists, and other so-called sympathizers of terrorism. Opposing him stands Rahm Emanuel, the President’s chief of staff, who contends these “enemy combatants” deserve no quarter and should be tried, without evidence, before a “military tribunal” after being held indefinitely (after an interrogation by torture). Joining Mr. Emanual, ironically, is the Tea Party faction, along with “Republicans” in general, all of whom claim that allowing suspects of terrorism a fair trial stands tantamount to treason.

President Obama, as is his wont, has opted for a “middle path”, as The Times reports today. Some detainees, specifically those whom he is sure to convict, will be publicly tried, and the rest will just be held indefinitely because it’s impossible to convict anyone you’ve tortured a confession out of without looking like a butcher.

Granting civilian trials to some “terrorists” and secretly sentencing the others creates a multi-tiered justice system wherein only the suspects for whom conviction is assured will be allowed to go to trial. This is pre-judgment and worse.  It it is a system that does away with even the pretense of caring whether or not these detainees are actually guilty. The government clearly seeks a few nefarious-looking Terrorists to be convicted by a civilian jury – thus proving that “the system works” – and then machinery to convict the rest of the suspects who could not be tried by jury because they were interrogated by torture and their cases would be thrown out (as, indeed, many have already).

It’s worth remembering that a vast majority of Guantanamo detainees were guilty of nothing more than bad luck. An ex-Bush official is on record saying that most of the people we held there were totally innocent.

But beyond this, The Times completely neglects to mention that these military commissions are illegal. The Supreme court has ruled, in numerous landmark cases, that the whole military commissions process is unconstitutional.  Hamdan v. Rumsfeld effectively nullifies the necessary sections of the Military Commissions Act, and Hamdi v. Rumsfeld restored Habeas Corpus and Sixth Amendment rights (the right to a speedy trial) to detainees.

In fact, the majority opinion of Hamdan states that all detainees be given a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples“, and clearly states that the commissions system set up in Guantanamo does not fit that requirement.

Any article discussing discussing military commissions has the duty to mention these cases, but since they’re  inconvenient to the prevailing narrative, they become “non-newsworthy”. I’m sure the “experts” they quote (nearly all Bush flunkies) know better.

One hears often from opponents of civil liberties that it’s “borderline criminal” to read a terrorism suspect his rights, that such actions provide “comfort to the enemy”, or as Ms. Palin thundered in her memorable Tea Party speech, that we’re allowing Terrorists who “hate our freedoms” to “lawyer up”. As Scott Brown, Massachusetts Senator and Tea Party darling once remarked: “Some people believe our Constitution exists to grant rights to terrorists who want to harm us. I disagree.”

But of course it is not for this charlatan to decide, but for the Supreme Court, who, unfortunately for Mr. Brown, has consistently ruled in favor of detainee rights. And for the record, the Constitution prescribes the relevant clauses to protect the rights of people who have been accused of a crime but not yet found guilty, much like these so-called “terrorists”. Until convicted in a court of law, these people are, by definition, guilty of nothing.

The reasoning employed by the Palin-Brown faction makes the dangerous assumption that anyone the government accuses of terrorism magically becomes a terrorist. In the warped mind of a Tea Partier, suspicion is proof. This works fine for most people, so long as it’s only brown Arabs with weird squiggly writing whom we lock up in cages with no trial, but the danger of promoting totalitarian practices is that you never quite know against whom they’ll be used next.

Postscript:

It’s also worth mentioning that every other country that has had problems with terrorism – India, Greece, Spain, etc. – have all found ways to deal with it within their already existing legal structures. They saw no need to create new levels of “justice” wherein some suspects get trials and others simply go to jail forever.

Terrorists = Criminals

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Everyone is talking, with good reason, about the lengthy article by Jane Mayer in this week’s New Yorker, which describes, in excruciating detail, the “debate” raging within the White House over whether “Terror suspects” are or are not criminals (and thus, are or are not entitled to constitutional protection). Mayer does a pretty good job of describing the various points of view, but one wishes she would get to the point of the article, which is that Attorney General Eric Holder finds himself assailed and unpopular because of his belief in *gasp* the rule of law.

I especially liked Ms. Mayer’s opening:

On December 5th, several hundred people gathered in Foley Square, in lower Manhattan, and withstood a drenching rainstorm for two hours in order to send a message to Attorney General Eric Holder. A JumboTron, set up by the protesters, played clips of Holder’s recent testimony before Congress, in which he explained his decision to hold the trial of Khalid Sheikh Mohammed—the self-proclaimed planner of the terrorist attacks of September 11, 2001—and four co-conspirators in the colonnaded federal courthouse flanking the square, rather than in a military commission at Guantánamo Bay, Cuba. Members of the crowd shouted at the screen: “Holder’s gotta go!”; “Arrogant bastard!”; “Communist!”Greg Manning, whose wife, Laura, was severely burned in the World Trade Center attacks, stood before the crowd and said, “Thousands are already dead because of Khalid Sheikh Mohammed’s choices. We do not want to see . . . hundreds of thousands dead because of the Attorney General’s choices.”

Andrew McCarthy, the former Chief Assistant U.S. Attorney who led the prosecution of the 1993 World Trade Center attacks, also gave a speech, declaring that Holder didn’t “understand what rule of law has always been in wartime.” He said, “It’s military commissions. It’s not to wrap our enemies in our Bill of Rights.”

“Traitor!” someone shouted.

Here one sees quite clearly the histrionics and appeals to emotion on which the “right-wing” apparently prides itself. It’s worth noting that these are the exact same arguments put forth by Ms. Sarah Palin in her infamous “Tea Party” speech a few days ago. A transcript hasn’t found its way online, but the gist of her remarks were that we oughtn’t give our “enemies” the benefit of the “freedoms” which they “hate” – and this includes such basic ideas such as due process, trial by jury and so forth. She even made the absurd assertion that only “US citizens” are entitled to constitutional protection – a remark which, I’m sure, made legal immigrants the country over squirm in discomfort.

I suppose it wouldn’t be worth pointing out that the Constitution makes no mention of “citizens” or even “persons” – theoretically, the rights it enumerates are universal. The language states that “Congress shall make no law that…”, which, if one were to take an inclusionist standpoint, would apply to all persons, regardless of nationality or jurisdiction. But, of course, this would make war unconstitutional, so most people conveniently forget these clauses.

Ms. Mayer gives the “Republican” talking points much space in her article, quoting a charming individual as calling Mr. Holder a “Communist”, giving Mr. Giuliani room to call Mr. Holder’s suggestion that “terror suspects” be tried as civilians as “almost criminal” – even quoting one protester as demanding they “lynch Holder!”

The rest of the article delves into the mess of organizing trials for these suspects. The centerpiece trial – that of Khalid Sheik Mohammad, suspected of “masterminding” the 9/11 attacks – would be thrown out of any civilian court immediately. Mr. Mohammad was severely tortured, including being waterboarded an astonishing 183 consecutive times. Several other suspects can claim similar mistreatment. In a country which follows the rule of law, confessions extracted via torture are illegitimate and cannot be used as evidence.

Also, no state wants to be the site of the trial – certainly not New York, where the attacks occurred. Mayor Bloomberg finally put the kibosh on that suggestion when it became clear such a move would be “political suicide”. Other mayors and governors have come to the same conclusion.

Ms. Mayer gets points for mentioning this inconvenient fact, which I’m sure the military commissions hard-ons wish would simply go away:

For all the tough rhetoric of the Bush Administration, it prosecuted many more terror suspects as criminals than as enemy combatants. According to statistics compiled by New York University’s Center on Law and Security, since 2001 the criminal courts have convicted some hundred and fifty suspects on terrorism charges. Only three detainees—all of whom were apprehended abroad—were convicted in military commissions at Guantánamo.

Oops.

It’s difficult to imagine the mindset of those who demand extra-legal military commissions for terrorism suspects. India, Pakistan, Britain, Spain and a raft of other countries that have far worse terror problems than we do  find civilian trials quite enough. India, for instance, prosecuted a 26/11 gunman right in Mumbai, meters away from where he carried out his deadly attack. Furthermore, constantly declaring that “we’re at war” and “terrorists are enemy soldiers” ends up giving these criminals far more legitimacy than they deserve. Consider, for a moment, which would be better for your self-esteem, and for the strength of your organization: being treated as a common criminal, or having the country which you attempted to attack thrown into a tizzy and creating special legal tribunals to deal with your “threat”.

If one could follow the “tough-guy” mentality toward combating terrorism to its psychological root, I think we would find power-worship and a Manichean “good guy – bad guy” worldview.  In order to believe you are truly “good”, it is necessary that your enemies be the embodiment of evil. In a sense, the more evil your enemies are, the more good you become as a result. And the easiest way to dehumanize your enemies is to keep them out of plain view, to deny them “human rights” – thus sending the clear message that they are not quite human.

It is clear how effective this can be as a political strategy, and it was put to wide use in Ms. Palin’s recent speech. Moral ambiguity never makes a good storyline – most people like their stories cut and dry: good guys over here, bad guys over there. The truth, of course, is rarely that simple, but great political rewards lie in store for those who can make its seem so.

However in the end it remains clear that those who wish to blow up buildings are of the same stuff as those who wish to murder people or commit vandalism – that is, they are criminals. Ask yourself whether we needed a military commission to try Timothy McVeigh.

Or are commissions only for brown people?