Can Yoo Believe it?

Well, John Yoo is at it again - or, more accurately, we are just finding out what he was at before. Recent public release of a 2003 "torture memo" (link to memo text here) written by Yoo has sparked all manner of outrage around those in the Know. There is no shortage of opinion, from the layperson to the law professor. In each instance, however, the reactive outrage is a rational response to a situation that has existed for the last 8 years. In order to understand the dogmatic dedication to defending the indefensible, we must understand the messanic loyalty that the current administration has shown to the UET. What else could prompt such statements as the following? 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. 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. One of the more interesting insights regarding Yoo and his motivations is here, where Scott Horton likens Yoo's thinking to that of Carl Schmitt: 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. I think that this shows some of the terrifying dichotomy that exists in the UET thinking - what applies to the "good" guys is different than the rules applied to "bad" guys. No matter how well-dressed in legal prose it is, this premise is not only a devastating tool to use against one's political enemies - real or imagined - but is also destructive to the social welfare. As Jack Balkin puts it: Lawyers can make really bad legal arguments that argue for very unjust things in perfectly legal sounding language. I hope nobody is surprised by this fact. It is very commonplace. Today we are talking about lawyers making arguments defending the legality of torture. In the past lawyers have used legal sounding arguments to defend slavery, the genocide of Native Americans, rape (both spousal and non-spousal), Jim Crow, police brutality, denials of habeas corpus, destruction or seizure of property, and compulsory sterilization. The point is well-taken: legal machinations do not create legality - not to mention morality. Yoo even has the temerity to use the law in double-edged fashion, when he accuses detainees of waging "lawfare" against us. Incidentally, the OLC lawyers should be vary careful about spreading this type of garbage - they are not immune to the ire of an enraged social justice system: 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…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. Recall that lawyers can get themselves in trouble in many areas of society: All sorts of lawyers -- from those representing crime families to those representing terrorists -- have been convicted of crimes because they concealed and/or promoted their clients' illegal acts. Lawyers aren't any more immune from the rule of law than anyone else. So, why is this at all important? After all, Jack Goldsmith was at least marginally successful in rescinding most of Yoo's memos and opinions. The reason for the importance is that legal opinions like this, even if eventually overruled, still contribute to the continued strengthening of UET. Scott Horton notes this fact in chillingly succinct fashion: While Yoo's specific Torture Memos were ultimately rescinded by subsequent DOJ officials -- primarily Jack Goldsmith -- the underlying theories of omnipotent executive power remain largely in place. The administration continues to embrace precisely these same theories to assert that it has the power to violate a whole array of laws -- from our nation's spying and surveillance statutes to countless Congressional oversight requirements -- and to detain even U.S. citizens, detained on American soil, as "enemy combatants." So for all of the dramatic outrage that this Yoo memo will generate for a day or so, the general framework on which it rests, despite being weakened by the Supreme Court in Hamdan, is the one under which we continue to live, without much protest or objection. All of this gibberish points to the manifestation of a single principle: The President can do whatever he wants - regardless of Congress, treaties, legal precedent, or any other control. In short, dogmatic UET. This opinion is so pervasive that it's pundits even support torturing the families of suspects. When even our goody-two-shoes neighbor Canada calls us a "terror state", it is time to seriously re-evaluate or direction. I will be curious to see how his support for UET continues if a Democrat is elected this time. Any bets?