Sunday, April 20, 2008

Nuremberg, USA

The federal Department of Justice is finally getting around to the question of just how John Yoo came up with his novel legal opinion that, in a nutshell, it ain't torture unless we say it's torture. More accurately, DOJ is going to consider not the legal reasoning or conclusions, but the professional behavior of Yoo as he drafted it. In other words, there will be no slap on Yoo's wrist by DOJ but they eventually may give him a really stern look.

Yoo's 2002 memorandum, officially signed by Assistant Attorney General Jay S. Bybee, was yet another example of the Bush-Cheney doctrine of the Imperial Presidency. Under this doctrine, whenever the president feels the need, he may ignore any law or international treaty that in any way inconveniences him.

Think that's an exaggeration? Back in February, in testimony before the House Judiciary Committee the current US Attorney General Michael Mukasey actually had the audacity to say that the Justice Department "...could not investigate or prosecute somebody for acting in reliance on a Justice Department opinion." Rather than parse his language (no one would be prosecuted for relying on a memo, they would be prosecuted for actually committing torture) let us explore the implications arising from his meaning.

If the DOJ hired Torquemada to draft a memo on the laws against torture is there no limit to what the memo could assert as a legal defense? In other words, once a retarded chimp says it is OK, is the case, literally, closed? If the memo claimed that adding poison to Mr. Mukasey's morning coffee was fine and dandy, could we not prosecute? This is not just a slippery slope -- it is an avalanche intended to bury law and justice.

Welcome to Nuremberg, USA.

Following World War II the allies held trials of Nazi leaders in the German city of Nuremberg. In their defense, the Nazis claimed that they were simply following orders and, therefore, could not be prosecuted for any war crimes they might have committed. At the original Nuremberg, these defenses were rejected. Among the international principles established during this process, two are particularly relevant today:
The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.

The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible government official does not relieve him from responsibility under international law.

Yet in the view of Yoo, the phrase "Commander in Chief" overrides every other clause of the Constitution, international treaties and even common sense. The entire 16 words in Article II section 2 of the constitution consist of "The President shall be Commander in Chief of the Army and Navy of the United States..." Note that it does not say that he can also override federal or international law. In fact, in Article II section 3 the constitution further admonishes that "...he shall take Care that the Laws be faithfully executed..." Mere mortals have a hard time arguing (with a straight face) that "Commander in Chief" indicates anything beyond the fact that under US constitutional government the civilian authorities are superior to the military. Yoo (a summa cum laude Harvard graduate in American History and graduate of Yale law school) was brought in to provide legalistic cover for the Bush administration -- and thus far has gotten away with it.

In a 2005 debate with Notre Dame law professor Doug Cassel, torture-meister Yoo was asked:
Doug Cassel: "If the president deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?"

John Yoo: "No treaty."

Doug Cassel: "Also no law by Congress—that is what you wrote in the August 2002 memo."

John Yoo: "I think it depends on why the president thinks he needs to do that."

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