John Yoo is angry

>> Thursday, January 17, 2008

John Yoo, the Bush administration attorney who wrote the infamous "torture memo" is angry. He's upset because Jose Padilla has named Mr. Yoo as a codefendant in a suit against a number of Bush administration officials who, Mr. Padilla says, violated his civil liberties.

Being accused of a breach of ethics is a horrible thing to have to respond to, even if you happen to know the complaint has no merit. I would imagine being the defendant in a lawsuit accusing you of ethical improprieties must be even worse. Mind you, it's not nearly as bad as being tortured. Let's be clear on that, shall we? Because apparently we need to be clear about that in these days when we have to have a national dialogue about whether an "interrogation technique" historically associated with the Spanish Inquisition and the Khmer Rouge is really (really really?) torture. Being the defendant in a civil lawsuit, where the worst indignities you suffer include being deposed in an air-conditioned room and cross-examined in an air-conditioned courtroom (lunch break around noon, recess at five o'clock) isn't nearly as bad as undergoing simulated drowning, being denied sleep, being forced to maintain a stress position, and having people threaten your life.

Are we clear? Do we need to go into more detail?

Now, I don't really know if Mr. Padilla's lawsuit has any merit; I don't mean on the moral side of it, I mean legally. Mr. Yoo was a government attorney, it may well be that a court could legitimately decide he has some degree of 11th Amendment immunity to being sued, even if it's only qualified immunity. It may be the case that even if he is a proper defendant in the case, that a judge or jury may decide that he's not liable for any harms that Mr. Padilla suffered. What I do know is this: Mr. Yoo is a whiny little bitch.

I say that because I just finished reading Mr. Yoo's January 16th opinion-piece in the Philadelphia Inquirer, in which Mr. Yoo whines and whines and whines about how terrorists are now using the legal system to harass the heroic defenders of our liberties, etc. He even uses a cute phrase: "lawfare." Did he coin that, or steal it? It's asinine either way, but no doubt will be picked up by pundits and blowhards on TV, talk radio and the intertubes. Mr. Yoo once again contributes to western civilization. We should think of an appopriate way to thank him.

Mr. Yoo helpfully points out that Mr. Padilla "is no innocent." Because whether or not a person has any civil rights depends entirely on whether they're a nice person—it clearly says so in the 5th and 8th Amendments, don't you know? That's why real-live cops are allowed to throw serial killers off bridges like they do in the movies, and nobody ever says anything about it. Don't you people read newspapers?

But seriously, one of the fundamental problems with the Bush administration seems to be their "Everything I Needed To Know About The Constitution I Learned From Lethal Weapon 2" attitude. Ronald Reagan, the actor-turned-President, may have talked about Star Wars and confused his experiences in Hollywood with actual WWII service, but at least he had a few lawyers (despite all those cabinet indictments) in his administration who you could tell went to law school and not just the Cineplex X down the road from their house in the 'burbs. Yes, I know Mr. Yoo purportedly went to Yale: he brags about it in his column, when comparing his background (private school, Harvard, Yale) to Mr. Padilla's (drugs, a juvenile murder conviction, a flight from gritty Chicago into the bosom of radical Islam). See, Mr. Yoo is a good person because he had a privileged upbringing and Mr. Padilla is a bad person because he had a shitty upbringing—this is what Mr. Yoo tells us in his own words, read the column yourself—and how dare this proletarian hooligan have the unmitigated gall to try to use the legal system against one of his betters?

But that's not my favorite part of Mr. Yoo's arrogance, ignorance, and all-around lack of character. My favorite part is this paragraph, full of unwitting irony:

They are wrong. Both the president and Congress have agreed that the United States is at war, and Congress passed an authorization for using force against any groups, nations or people responsible for the 9/11 attacks. Capturing prisoners has been a permanent feature of war throughout human history; hundreds of thousands were detained during World War II alone. Sometimes, unfortunately, the enemy has included U.S. citizens - in the Civil War, every Confederate soldier was a citizen, and in World War II some Americans fought in the Axis armed forces. They never had a right to sue the soldiers who caught them.

See, I was under the impression that the reason you could waterboard a suspected terrorist was that he wasn't really a soldier: he was an "unlawful non-military combatant." Did I get that term of art right--that is what they're calling them, isn't it? If Mr. Padilla was an actual soldier, he would have been protected by the Geneva Convention and his forceful interrogation would have made his interrogators war criminals, hence Mr. Yoo and the administration's "clarification" of Mr. Padilla's status.

There weren't any such formal conventions in place during the American Civil War, and POWs were brutally treated in places like Andersonville, and this fact left deep scars. Some portion of the trauma of Reconstruction was the resentment each side felt over their ill-treatment by the other side during the war that sometimes motivated Southerners to be stubborn and Northerners to be punitive. Perhaps if there had been accountability on both sides, those particular wounds might have healed faster; there wasn't, and reconcilliation and redemption were tragically delayed.

But the more interesting slip is Mr. Yoo's evocation of the Second World War. After the First World War, treaties concerning the treatment of POWs were in place. And after the Second World War, POWs abused by the Germans and Japanese didn't have to sue: the men responsible were tried by an international tribunal and clumsily hanged. Particularly suggestive is the fact that at Nuremberg the murder of allied POWs at the Mauthausen prison camp was, legally speaking, the strongest charge against the Nazi leadership. Genocide was not a crime before the trial, and charging the Nazis with it was a dubious ex post facto prosecution that required the tribunal to specifically and preemptively strip the defendants of an otherwise valid (and in western law, sacrosanct) legal defense.

But the accusation that the Nazi leadership had ordered prison camp commandants to execute escapees was a clear and direct violation of treaties that Germany was a party to when war broke out, and it was a charge that went to the bone for the veteran military men in the dock, some of whom had personally loathed the order to execute escapees that they nonetheless passed along. Genocide was a relatively new and legally untested concept. The idea that a nation might be held accounable to the international community (itself a new concept) for its domestic business was new. This is irony: that the worst, most immoral and unhuman things the Nazi regime did weren't, technically speaking, actually illegal, while the execution of a relative handful of soldiers (not a small matter, except in comparison to the entirety of the Holocaust) cut to the quick of the Rule Of Law applied between nations.

So the redress for WWII POWs deprived of their rights was to know that the men responsible—the men in the administration who gave the orders and provided the rationalizations—were hanged as war criminals...

...Mr. Yoo isn't trying to suggest an appropriate award for his services, is he?

And I especially hope he isn't suggesting that American soldiers were war criminals. Perhaps he isn't aware, for instance, that WWII interrogators from Fort Hunt have gone on the record as saying they never treated a Nazi the way we're treating suspected terrorists. Indeed, I'm not personally aware of any allegations that our WWII servicemen engaged in any kind of activity against German or Japanese POWs similar to what Mr. Yoo has encouraged the Bush administration in. An accusation that American soldiers engaged in criminal conduct against POWs (who couldn't sue, natch) isn't something that one should make as cavalierly as one might suggest, oh, I don't know--as one might suggest that the United States may waive Article 17 of Convention (III) relative to the Treatment of Prisoners of War as they see fit. Mr. Yoo might consider learning some history before he attempts to appeal to it for justification.

It would seem that Mr. Yoo is happy to call men like Padilla "non-military combatants" when it suits him and "soldiers" when it's to his advantage. Maybe, in addition to not learning history at the Episcopal Academy, class at Harvard, or law at Yale, he also managed to not learn logic or consistency when he was sneaking out to the multiplex to watch action movies.

Or maybe he did learn these things, or at least heard about them, and he's simply an asshole.


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