Is John Yoo a Monster?

No, according to John H. Richardson of Esquire. Why not?

He wasn’t wrong all the time:

Consider also that courts and Congress have endorsed many of Yoo’s opinions, including the use of military commissions and the extended detention without criminal charges of “enemy combatants” who are American citizens.

The questions were really, really hard:

And consider this — we still can’t even agree on the basic question that Yoo is asking his law class today, which turns out to be not a quibble or a technicality but the very first question that landed on his desk on the afternoon of September 11, 2001:

Is this a war? How can the president respond? Can he use the Army? Will he need congressional approval? Is this a war? (Italics in original)

He’s the administration scapegoat, a family man, a selfless public servant and agrees with several progressive ideas, such as a woman’s right to make her own health care decisions, or ‘unexpected quirks’ as Mr. Richardson calls them:

These are hard questions. Most of us shrug them off and judge Yoo and Bush through the lens of Abu Ghraib and Guantánamo. But Yoo didn’t shrug them off. He put them at the center of his thinking. As a consequence, he is being hauled before Congress in May and will be forever defined by the abuses of the Bush administration.

From his office, he has a million-dollar view of San Francisco and the Golden Gate Bridge. There are law books everywhere. His screen saver is a picture of his wife. His iPhone screen saver is a picture of his wife too, which helps take the edge off all the hate calls. On the floor, there’s a shopping bag from a local hippie institution called Amoeba Music. On the wall, a framed goodbye card from the Department of Justice. “Thank you for your excellent service to America,” John Ashcroft wrote. “We are stronger and safer because of you.”

He turns out to have lots of unexpected quirks. He’s pro-choice. He thinks flag burning is a legitimate form of free speech. He thinks the government is “wasting a lot of resources” in the war on drugs. He thinks the phrase “war on terror” is misleading political rhetoric. He’s cowriting an article that makes a conservative case for gay marriage. “Our argument is, the state should just stay out of these things, because it doesn’t hurt anybody.” And he’s definitely alarmed by the more theocratic Republicans. “When Mike Huckabee says he wants to amend the Constitution so that it’s consistent with God’s law, that scares the bejesus out of me.”

And people are angry with him and they let him know about their anger, and he’s smart, and he was practicing law on the cutting edge in the “heat of battle”, and he didn’t evacuate his D.C. office, worked there until 3:00 a.m. on September 12, 2001, and then he continued working from home, and other attorney’s signed off on his opinions, and his opinions were only supposed to be used to authorize torture by the CIA but not by the Army, and it was a “thankless job,” and he “really tried,” and “suicide terrorism in the age of nuclear weapons” is different, and we interned the Japanese in World War II (which is worse), and we only tortured 3 people, and waterboarding is only ‘”on the line” of being torture.

Note however that, in this same article, Prof. Yoo justifies his advice because:

His memo also includes a long list of examples of acts that various courts have found to be torture, page after page of severe beatings and electric shocks and even one case where guards shackled a man to a bed, placed a towel over his face, and poured water down his nose — a nearly exact description of waterboarding, “which people ignore because they focus on that one sentence,” Yoo says. “So if you read the whole opinion, I don’t think of it as a license to do anything you want to.”

Mr. Richardson did manage to provide some counter arguments including these from Jonathon M. Freiman, attorney for Jose Padilla in Padilla’s civil suit against Prof. Yoo. Note how Mr. Freiman bristles, pounds Prof. Yoo and is “particularly passionate” and especially scornful:

Jonathan Freiman, Jose Padilla’s attorney, bristles when I run Yoo’s arguments down for him. “The Supreme Court has said every time it’s been asked since 9/11, a state of war is not a blank check. The Constitution applies.”

* * *

It’s a dangerous question, Freiman says. “The argument that the entire United States has become a battlefield by virtue of those heinous attacks on 9/11 is just an argument to make the Constitution completely optional, an argument to extend presidential power to the level of monarchy — to every inch of life in this country.”

For the next two hours, he pounds Yoo from every possible angle: They already had Padilla under arrest and could have held him under charges like conspiracy or levying war. But they wanted to interrogate him and they wanted to use harsh methods, so they just made up their own rules. This was the natural result of rejecting the Geneva Conventions instead of treating Al Qaeda members as ordinary war criminals. “Before 9/11, you’re either a criminal or a soldier. What the government said was, We want a third category where the black shade is drawn, where there are no protections whatsoever, where there is no law.”

Freiman is particularly passionate when he rips into the torture memo itself. Did I know that the Justice Department was now investigating how it ever came to be written? Did I know that the man who took over Yoo’s department withdrew it, calling it “deeply flawed, sloppily reasoned, overbroad, and incautious in asserting extraordinary constitutional authorities on behalf of the president?” What Yoo should have done was look at the Eighth Amendment, which forbids cruel and unusual punishment. He should have considered international treaties against torture and cruelty and civil rights along with a host of domestic laws and statutes. But Yoo wasn’t acting as an honest lawyer, he says. As the Padilla lawsuit states, he was “a key member of a small, secretive group of executive officials who exerted tremendous influence over antiterrorism policy and who were known as the ‘War Council.’ “ So he bent the law to justify a course of action he was already determined to take.

Freiman is especially scornful about the “necessity argument,” as legal philosophers call it — the idea that the president can take extraordinary actions in an emergency to protect the nation, that the information in Padilla’s head was worth cracking it open. “That’s the argument that every despotic regime in every corner of the globe has been making for sixty years,” he says. “Necessity, national security. The Nazis invoked necessity too. The question is, How do you deal with those threats? Are you bound by human rights, or are you not?”

This is why Freiman filed Padilla’s lawsuit against Yoo. To redraw that line, he says, to recover our sense of justice and decency, to salvage the idealism that once shone so bright, America must pass judgment on John Yoo.

And this counter argument:

Some say this is where he should have balked. “Torture violates the very premise of the legal system itself, that there is something irreducible and inviolable about every person,” says Yoo’s fellow Berkeley law professor Robert H. Cole. “You can’t write a memo about it the way you would write about snowmobiling in Yosemite.” At the very least, they say, Yoo should have warned of the moral danger the question posed to the essence of America. (Emphasis supplied.)

Mr. Richardson has Prof. Cole’s quote tucked in between the things that ‘some’ say and the other things that ‘they’ say, as if ‘he’ was ‘their’ spokesman. But, if Prof. Cole has accurately described Prof. Yoo’s actions, i.e., that they “violate[d] the very premise of the legal system itself…,” would that not in fact be tantamount to a violation of the rules of professional conduct? Asking whether Prof. Yoo is a monster may make for a ‘good’ title for an apologia such as Mr. Richardson’s but it is little more. If the question is whether Prof. Yoo violated the rules of professional conduct of Pennsylvania and Washington, D.C., the answer is: He did.

File a grievance against John Yoo.

Read the entire apologia here.

I’ve e-mailed Prof. Cole and Mr. Freiman for their comments. I will update this post with any response received.

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8 Responses

  1. so, if every single thing that you do is not bad, then the most horrible thing that you have done and have abetted others in doing doesn’t count? is that what he’s saying? is that the argument? he loves his wife, ergo, he is a good guy? how many prisoners in gitmo or abu ghraib loved their wives?

  2. so, if every single thing that you do is not bad, then the most horrible thing that you have done and have abetted others in doing doesn’t count? is that what he’s saying? is that the argument? he loves his wife, ergo, he is a good guy?

    That’s right: he’s a really, really nice authorizer of torture. And don’t forget that the questions were really, really hard and that he tried really, really hard to do his best at a most thankless job.

    how many prisoners in gitmo or abu ghraib loved their wives?

    It sounds like maybe you’re one of them Patriot-hating, terrorist-lovers. Which, of course, makes you welcome here any time.

  3. busted! i don’t even wear a flag pin!

  4. Hey, E.M. I’m still letting this article sink in. I’m at the cold, controlled anger stage which I guess I have grief and acceptance to still reach. John H. Richardson basically embedded himself with Yoo for the interview. The first few paragraphs prompted me to watch a clip from Trey Parker’s and Matt Stone’s Team America. You know the one with Kim Jong Il singing I’m Ronery?

    and cartoon Hitler singing O Tannenbaum:

    and Satan pining for a life that’s not underground:

    I’m disappointed with Richardson setting up the question “Is John Yoo a monster?” when that’s really not the fucking point.

  5. Hey Mel,

    I don’t recall reading anything from Richardson before this article so I had no preconceived expectations. My impression was that this was more a marketing piece than journalism.

    I also started working on my Hans von Spakovsky post again – now that he withdrew his name from appointment to the FEC. Hopefully not too little, too late for him. And there’s plenty more to go. I also fear that any desire to grieve any of these fine attorneys will lessen the closer we get to a new (Democratic) President.

    Thanks for the links. I’ve not seen that movie and I’m having to upgrade to a newer Flash before I can watch them.


    Didn’t Yoo make this possible?



    • Thanks for the link.

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