The Bush Regime's Revolution in Legal Affairs

Sure, he was rich, but he wasn't particularly wise: Lydian King Croesus (enthroned) receives a visit from the Athenian lawgiver, Solon, in this depiction by the Dutch master Gerard von Honthorst.


If audacity were wealth, John C. Yoo would be richer than Croesus. But then, if wisdom were breath, he would have died of asphyxiation long ago.


Yoo has become properly notorious as a key legal architect of the Bush Regime's version of fuhrerprinzip -- the doctrine that the powers of a "war president" are essentially limitless, and include the right to order the torture of anyone upon whom he chooses to inflict such treatment, including innocent children.


He is the chief author of the so-called "Bybee Memorandum," the August 1, 2002 document that provided pseudo-legal justification for torture under the color of supposed presidential authority. (Jay S. Bybee, who signed the memo composed by Yoo, was the assistant Attorney General for the White House Office of Legal Counsel (OLC) at the time; he has since been appointed to the Ninth Circuit Court of Appeals.)


In recent days, thanks to the commendable persistence of the ACLU*, the Bush Regime has been compelled to disgorge another torture memorandum written by Yoo, this one composed on March 14, 2003. (Part one is here; part two, here.) Building seamlessly on the previous memo, this second installment in Yoo's apologia for torture was written for the apparent purpose of trumping objections to torture offered by high-ranking military personnel.


The second Yoo memo was largely a refinement of the first, differing primarily in the brazenness with which the case was made for official impunity: It asserted plenary immunity to criminal laws on behalf of those who committed acts of torture and even mutilation while acting on presidential orders. Physically maiming a detainee was described as a legally defensible tactic as long as the torturer was "fulfilling the executive branch's authority to protect the federal government and the nation from attack after the events of September 11, which triggered the nation's right to self-defense."


Thus if an intelligence officer or military interrogator were to cripple, blind, disfigure, or otherwise permanently mangle a prisoner under orders from the executive branch, he would be immune to prosecution. The same claim was made on behalf of those who tortured detainees to death.


Yoo's second memo was issued just a few days before the Bush administration attacked Iraq, and roughly a year before the disclosure of grotesque atrocities committed at Abu Ghraib -- the latter being the undeniable offspring of the policy adumbrated in the Yoo-authored memos. Commentator Marty Lederman is incontestably correct in stating that the Yoo memos, the second in particular, constitute "the source of the Nile for the abuses that occurred in Iraq in 2003."


Given that the original Yoo-authored "Bybee Memorandum" made all of the essential claims of unlimited executive power and derivative immunity for presidentially appointed torturers, why was the second one necessary? According to legal analyst Scott Horton of Harper's, the second memo was part of an effort by the deranged neo-"conservatives" running the "war on terror" to bring the military to heel.


From the beginning of the "war on terror," Horton observes, interrogators were authorized to employ torture at Gitmo and Afghanistan's Bagram Air Force Base. But while Rumsfeld, Cheney, and their epigones were ardently pushing for torture, "the intelligence professions were actually pushing back" against the practice. The same was true of career military legal officers, particularly Navy general counsel Alberto Mora.



The furious opposition to torture among uniformed personnel at the Pentagon prompted a tactical retreat by the neo-cons. Rumsfeld "suspended" the use of torture in December 2002, and William J. Haynes, Rumsfeld's legal counsel, instructed the OLC produce a second torture memo intended to placate the military lawyers.



In April 2003, a Pentagon Working Group on Iraq approved the findings of the second Yoo memorandum. In fact, they had no choice, since the White House, in an homage to the Brezhnev-era Soviet Politburo, informed the Working Group that its members were required to accept those findings. The effort to build a "consensus" on this matter was simplified by another Soviet-style touch: The top lawyers from each of the military services were excluded from the Working Group, and weren't informed about the contents of the second Yoo memorandum until more than a year later -- by which time the phrase "Abu Ghraib" had entered the colloquial vocabulary.


As far as the Bush Regime was concerned, legal objections to torture rooted in the Constitution, statutory law, the UCMJ, the Geneva Conventions, and centuries of Anglo-Saxon common law were irrelevant, because Deus vult -- with the holy personage of the Dear Leader serving as a substitute for the Deity.


Yoo displayed exactly the right combination of sycophancy and sophistry to win the coveted role of composing the Regime's briefs on behalf of torture. But he's just one unremarkable specimen from a large and thriving population of totalitarian pseudo-conservative legal activists.


Key legal architects of the torture policy have been offered posts in the judiciary. As noted above, Bybee was appointed to a spot on the Ninth Circuit Court of Appeals. Haynes was nominated for a post on the Fourth Circuit Court of Appeals in November 2003. Republicans in the Senate Judiciary Committee approved the Haynes nomination in familiar lock-step -- make that goose-step -- fashion; however, Senate Democrats, in an all but unparalleled gesture of principled rebellion, filibustered the nomination to death.


So Haynes continued as General Counsel for the Defense Department until last February 25, when he suddenly resigned.


Oddly enough, after seven years of "public service," Haynes developed a sudden urge to return to private life immediately following the publication of an article in The Nation exposing his role in rigging capital trials of six detainees in Gitmo. This accusation came not from some ACLU lawyer in Poindexter glasses, or some pachouli-scented "peace creep," but from Col. Morris Davis, the former chief prosecutor for the Military Commission at Gitmo.


According to Col. Davis, Haynes told him in August 2005 that the trials of Gitmo detainees "`will be the Nuremberg of our time'." Davis, in reply, pointed out that some of the defendants at Nuremberg had been acquitted, a fact which conferred some credibility on the proceedings in the eyes of some skeptics.


A very sound criticism of the Nuremberg Tribunal was that it was an exercise in "victor's justice" -- a forum in which the accusers were also the prosecutors and the judges. And it shouldn't be forgotten that the Soviet Union, which sat in judgment of the Nazis at Nuremberg, began the war as allies of the Reich. Perhaps Davis had those criticisms in mind when he referred to the PR value of acquittals, should they occur at Gitmo:

"I said to [Haynes] that if we come up short and there are some acquittals in our cases, it will at least validate the process."

Davis, however, didn't understand that the Bush Regime wouldn't settle for anything less from him than the Full Vyshinsky: He was to be chief prosecutor in a neo-Stalinist show trial, the preordained outcome of which would validate the Regime's wisdom.

"[Haynes's] eyes got wide and he said, 'Wait a minute, we can't have acquittals.'" Davis recalled. "`If we've been holding these guys for so long, how can we explain letting them get off? We can't have acquittals. We've got to have convictions.'"

Davis resigned his position on October 4 of last year, just hours after learning that Haynes had been placed above him in the chain of command. Following Davis's disclosures, the Pentagon issued a statement "disputing" the former prosecutor's account of the conversation. Haynes made no public comment, but given his hasty resignation this is clearly a case of res ipsa loquitur.

Weep not for Haynes. True, he was denied a seat on the federal judiciary. However, later this month he begins his new job as corporate general counsel at Chevron, that charming little Mom-and-Pop business whose tanker fleet once included a vessel named after Condoleeza Rice.

John C. Yoo likewise landed on his feet with a teaching position at Berkeley Law School. Unlike Bybee and Haynes, however, Yoo's retirement from "public service" has been disturbed by some lingering legal unpleasantness, in the form of a lawsuit filed by attorneys representing Jose Padilla.


Mr. Padilla is an American citizen, albeit hardly an exemplary one. He was designated an "unlawful combatant" by George Bush in 2002 and held for more than three years without trial or legal recourse of any kind. During that time he was tortured by his captors, who (according to one Regime official) were deliberately trying to destroy Padilla's mind and personality.


All of this followed Yoo's prescriptions for unaccountable wartime presidential power. In fact, from Yoo's perspective Padilla should be abjectly grateful that he was not blinded, maimed, or crippled during his detention. And Yoo -- who, once again, considers such treatment to be perfectly just and legal when ordained by His Holiness the Decider (peace be upon him) -- simpers that the lawsuit filed on Padilla's behalf is nothing less than another form of terrorism.


Yes, those who commit torture and other abuses are covered by "qualified immunity," but
Padilla's lawsuit "shows that qualified immunity is not enough," whined Yoo in a January 19 Wall Street Journal Editorial. "The legal system should not be used as a bludgeon against individuals targeted by political activists to impose policy preferences they have failed to implement at the ballot box. The prospect of having to waste large sums of money on lawyers will deter talented people from entering public service, leading to more mediocrity in our bureaucracies. It will also lead to a risk-averse government that doesn't innovate or think creatively."


Yoo is not being sued because of a difference over "policy preferences"; he's being sued for his role in a criminal conspiracy to subvert the Constitution. His is a thoroughly mediocre mind, and what meager talents he possesses are confined to the realm of corrupt self-promotion. The repellently fascinating aspect of this tissue of special pleading, however, is the implicit assumption that those employed by the executive branch must be entirely free from accountability of any kind -- at least in the context of an open-ended war.


As is so often the case in examining the Bush Regime's assault on what remains of our heritage of liberty under law, we're drawn irresistibly to the early 1930s in search of apt parallels.


Politicized "justice": Christian truth-teller Sophie Scholl on trial before the Nazi "People's Court."




In his study Hitler's Justice: The Courts of the Third Reich, Ingo Mueller describes how the Nazified German legal system extended the kind of unqualified immunity Yoo covets to those who committed crimes on behalf of -- ahem -- Homeland Security:



"Since it was important for the courts to prosecute only the right sort of criminals, a whole series of laws and decrees passed after the Nazis seized power specified that the penalties for political offenses were to be increased; at the same time, a generous amnesty was provided for offenses committed `during the national revolutionary struggle of the German people, in preparation for this revolution, or in the struggle for the German homeland.' In addition, [an influential German jurist] ... argued that the `national aim' should be generally recognized as grounds for immunity. He referred to the decisions of the Supreme Court based on the doctrine of `national emergency,' which suggested such a line of reasoning. Of course [contended this jurist], judges should hand down fair decisions, `but objectivity finds its limits in the German understanding of the law when the national security is placed in doubt'; every judge is `a son of his country' and as such must `place the vital interests of the nation unconditionally above what is formally the law.'" (Emphasis added.)


As we can see, Germany in the early 1930s was blessed with an abundance of "talented" and "creative" public servants, as well.





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Dum spiro, pugno!

*I know, I know: It pains me to make yet another favorable reference to the ACLU, but one must give credit where it's due.