Liberal Boalt Hall (UC Berkeley) law students and outside liberal organizations are continuing their demand that conservative law prof John Yoo resign his position because of a legal memo about the status of prisoners that he wrote while serving in the Bush Justice Dept. (This controversy has been discussed on Volokh, with links and very well, here, here, and here.)
Briefly (and superficially), Yoo argued that neither al Qaeda nor Taliban prisoners come under the protections of the Geneva Convention because they do not serve in the army of a nation at war. I have not studied this issue and so have no opinion on the substance of his argument. I do, however, have an opinion about his critics, who argue that he is not fit to teach at Boalt whether or not his legal advice was sound.
According to Michael Anderson, who just graduated from Boalt and is leading the petition drive against Yoo,
Even if Yoo is right and terrorists aren’t covered by the Geneva conventions, he induced the military to commit war crimes with his advice.
Similarly, Kenneth Roth, executive director of Human Rights Watch, says Yoo was
clearly a major contributor to the environment that led to the abuses at Abu Ghraib…. He not only excused the violation of rights of prisoners at Guantanamo, which was wrong in itself, but he set in motion the legal loopholes that led to coercion on a broad scale.
So, Yoo committed “war crimes” by writing a legal memo that made him a “contributor to an environment” in which some people committed abuses that involved violating rights that at least Anderson acknowledges the prisoners don’t have, or may not have.
Wait, I have an idea. Maybe Roth should resign his executive directorship and Anderson return his diploma because both of them are contributing to an environment that will foreseeably cause the devaluation of academic freedom and legal rules (dismissed by Human Watcher Roth as “loopholes”).
Anyone who’s offended by Anderson’s idiocy would do well to sign the counter-petition in support of academic freedom.
I supported the right of left-wing Professor Sami al-Arian to continue teaching until he was indicted (which he has been).
Under the circumstances, I certainly must support John Yoo’s right to teach, and hope that he (along with all the others responsible for instituting an unlawful policy of torture associated with the highly un-American “finding” that the President is authorized to waive all American laws at his pleasure) are sent to the Hague. (I doubt if American political exigencies will allow us to hang them here.)
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Ahh, the kind tolerant and “diverse” Left. Wouldn’t hanging be a bit too indulgent though? After all, the professor did pen a legal opinion that Lazarus and his kindreds found objectionable. Perhaps a slowly-burning tire around the neck would be more suitable. Surely this would be an instance where friends Kerry, Kennedy, and Castro would support capital punishment and beyond.
And unlawful policy of torture indeed. If I recall correctly the official United States torture policy was implemented by Executive Order LUN8IC.
StuartT: Hypothetical for you. Johannes Yoo of the Third Reich Justice Ministry (or whatever they called themselves) writes a memo
Mein Fuehrer! Because of National Security you can put the Jews in Concentration Camps and kill them! The POWS we capture, we call them terrorists and we don’t have to follow the Geneva Conventions.[*]
Is this legal advice, or illegal conspiracy? Two of the Nuremberg defendants were lawyers, you know.
Googling for LUN8IC turns up nothing, can you provide a link? The nominal, lawful US policy on torture is our ratification of the Convention Against Torture, legislation implementating said ratification, and the incorporation of laws against torture in the UCMJ. The policy actually implemented, thanks in no small part to John Yoo, and other lawyers who wrote this anti-American blueprint for revoking democracy and instituting a new rule that the President may set aside all laws, including those against torture or protecting POWs, at his own sole discretion (a policy alien to Anglo-American law since 1688) was one of torture including beatings to death. We are rapidly finding out that Abu Ghraib was no isolated incident. John Yoo is one of the criminals responsible for these war crimes, from his time in the government, not an academic writing on the subject abstractly.
footnote [*]: With the exception of certain incidents involving the transfer of Jewish Allied POWs in the West, which were by no means the rule, the Germans generally followed the law of war in treatment of British and American POWs. The Japanese did not, and finding their excuses inadequate (although they were no worse than the ones the Bush Administration rely on), we hanged the parties responsible.
Andrew: Actually I was commenting a bit facetiously under the (apparently false) assumption that your prior post was also. That you are sincere in what you say only solidifies my impression of what a strange and wonderful thing is the mind of a leftist.
First, you seem to have confused or conflated Mr. Yoo’s role in this matter. He is a legal scholar offering a legal opinion. He is not acting in the capacity of philosopher, statesman, or theologian–in which case he may have arrived at dramatically different conclusions.
To address your hypothetical: You are drawing no distinction–and one must be drawn– between straw man pretexts made up out of whole cloth (interesting that you didn’t use the example of Cossacks under Bolshevik Russia) and those premised on a body of precedent and law. Your Nazi hypothetical is simply a political discussion masquerading as a legal one, and as such is a false analogy. Yoo was asked to offer an opinion of the legal framework involved with obtaining information from captured Al Queda combatants. At no point did he enthusiastically opine that “we can kill the Arabs!” And by the way, there is nothing within the Geneva Conventions (which did not exist at the time of WW2, and thus your analogy) which would offer protection to terrorists or insurgents. The whole point of the conventions was to offer protection to uniformed military personnel conducting war in an open capacity. So with the conventions signed in 1949, to what law of war are you referring in regard to WW2 German military conduct? Finally, did you ever pause to consider that perhaps the information obtained from interrogations could save the lives of “oppressed” American blacks and Hispanics?
But I’ll go a bit further with this. If a statute explicitly states that the speed limit is 80mph and your senior executive asks for a legal opinion on how fast he can drive, you damn well better tell him 80mph even if you personally feel that any pace over a brisk walk is obscene. In neither this hypothetical nor Yoo’s case were the legal scholars queried on their personal feelings of the matter; and in both there was little available latitude in their response.
Fortunately though, bloviators such as you and I are subject to no such constraints. Quite the contrary, we are at liberty to engage in the most outrageous clacking imaginable, even to the point of calling for summary execution of avuncular law professors.
I might also point out that there are formally sanctioned legislative bodies from which we, as citizens, may give voice to our legal preferences and codify acceptable behavior–including limitations on our chief executive. If you don’t like the law, then change it. Though granted, I realize that the Left prefers its legislators to wear black robes, and so I do understand your chagrin from this perspective. Yet the point remains: the professor offered only his interpretation of the outstanding legal framework as it stands. If however you want to live under the rule of an imperial judiciary which utterly ignores the plain language of the law in favor of their own moral imperatives, then you need do nothing whatsoever. It is at hand.
Actually, Yoo is correct – in order to be covered under the Geneva Convention, you must abide by the rules of the Geneva Convention. In terms of international law, uniformed soldiers of Saddam’s forces must be dealt with by Geneva Convention rules. However, if you don’t wear a uniform, attack our troops from off-limits targets (such as mosques, hospitals and schools), and basicly violate every rule of war that there is, we can lock you up in a dark hole, throw away the key, and be perfectly within the law.
Sucks to be them. They decided not to obey the rules.
Stuart, there most certainly were Geneva Conventions during WW2. The current Conventions from 1949 are a revision of previous versions. It says so in the first sentence of the Preamble. I find Google often saves me from elementary errors of fact. (You might also think back to the scene in “Bridge over the River Kwai” where the Japanese prison commandant rips up the Conventions.)
You have evaded the question. How exactly are you distinguishing Johannes Woo’s advice from John Woo’s? Both led ineluctably to atrocities. But even if you don’t like my particular example: at what point (if any) did the Third Reich Justice Ministry step over the line into illegality? At what point (if any) do we lose the idea that this were opinions divorced from act, and see their work as part of a criminal conspiracy, even if the attorneys do not personally participate in the torture?
Why don’t you guys read the Geneva Conventions (link in my comment above) instead of parroting the self-serving and discredited Bush talking points?
The biggest problem is
Even our allies refer to our failure to convene any such tribunals (we now are, over two years on) as “monstrous“. The entire rest of the world believes that the deermination that a prisoner has violated the laws of war must be made retail, so to speak, and not wholesale by our Magnificent and Almighty President. It appears that some of the prisoners are civilians who were picked up in security “sweeps” and not on the battlefield, and others, especially the Taliban, were lawful combatants. (Inhabitants of the invaded region are not required to be in uniform, see section 4.A.6) In particular, Yoo’s arguments that members of the Taliban are not POWs because we did not recognize the Taliban was anticipated and rejected by the authors (my emphasis): “Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.” And as to Yoo’s claim that the Taliban were not POWs because their government’s hold on the country was tenuous—have you seen how little of the country is controlled by our government?
These are not really legal opinions. They’re legalistic nonsense, like the even worse memo repealing the Constitution, to provide some cover for the commission of war crimes. It would be child’s play to concoct Johannes Woo’s analagous justification for the Holocaust. So I repeat, when does this become a conspiracy?
You might recall that the Administration stated repeatedly that we would adhere to the Geneva Conventions in Iraq, at the same time that these legalistic memos established the Abu Ghraib policy to the contrary.
Sauce for the goose:
Sauce for the gander:
Andrew: You called me out on the Geneva dates. I was speaking only from memory and now have egg on my face. They say that memory is the second thing to go. I stand corrected. Unfortunate, since it provided you an easy out to ignore the other 20 sentences of my post.
And I have evaded YOUR question? Now that’s brazen, and certainly a departure from the norm of our past debates. I won’t let that happen again either. I’ll take it line-by-line this time so as not to evade anything.
But before I do, let’s agree on one point: I detest your political ideology with all the passion that you can summon in abhorrence for mine. So all your blah-blah about monstrosities/ Bush-is-Hitler/ war criminals/ repealing the constitution is nothing but noise to me. I go to sleep to it. zzzzzz. I’m sure you feel the same likewise. Furthermore, I don’t parrot anyone’s talking points, most particularly since I’m not privy to them. Once the White House starts requesting my input and shares their ideas, I promise to cease posting here forthwith.
Back to our chat. You say:
“How exactly are you distinguishing Johannes Woo’s advice from John Woo’s? Both led ineluctably to atrocities.”
Actually, his name is Yoo with a Y. I find Google often saves me from elementary errors of fact. Sorry, I had to. But seriously, my response is simply, you’re wrong in the extrapolation. To say that Al Queda combatants are not protected by Geneva is NOT to say that they are to be gratuitously tortured. In your hypothetical, the Nazi specifically endorses killing Jews! Are you suggesting that Yoo recommends something similar? Do you not see the enormous difference here? But If you only want to talk about what led to what, you could just as easily say that the copulation of Stalin’s parents ineluctibly led to 25 million dead Ukrainians. I suppose Ma and Pa Stalin are responsible, no?
Your second question is unclear as to whether it’s in the hypothetical or historical. I won’t speculate.
Next, you ask: “At what point (if any) do we lose the idea that this (sic)were opinions divorced from act (sic), and see their work as part of a criminal conspiracy, even if the attorneys do not personally participate in the torture?”
Actually, at no point. Because the opinions were manifestly NOT divorced from fact. They were well-reasoned (to a layman such as I am), though I suppose arguable, opinions based on the outstanding legal framework. Though I’m not an attorney, nor do I believe are you. (I’m certain that fact will be corrected posthaste if wrong) And a criminal conspiracy? To what end, pray tell? On second thought, don’t answer that. I’ve heard enough Lyndon LaRouche for one night. http://larouchein2004.net/
Section 4.A.6 does not generally exempt inhabitants of an invaded region from the requirement to wear uniforms. Its wording is much narrower than that, applying only to “inhabitants of a non-occupied terroritory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units.”
Does anyone really think that any of the Taliban soldiers are Afghan citizens who had no idea the U.S. was about to attack, but who “spontaneously took up arms” against us after we did?
Xrlq: as I mentioned, our own allies feel that the Taliban were lawful combatants (unless they committed some particular war crime), either as a militia or those who lived in the particular theatres of war defending their territory. The only argument against this that makes any sense is that they generally wore no standard uniform.
(Neither did our Afghan allies, but do you think we viewed them as war criminals without rights?)
Stuart: OK, I’ll cut down on the noise. Is there any type of advice that a government lawyer could give to his leader that would constitute entering into a criminal conspiracy?
As far as well-reasoned, I suppose it takes a certain cleverness to revive the Constitutional prerogatives of pre-Jacobite monarchy, allowing the President to suspend any and all laws at will (this truly is our government’s position), but well-reasoned? This is the country you want? May you get it—under President Hillary Clinton!
Good catch on my slipping between W and Y; shouldn’t stay up so late!
Andrew: Whether by design or not, there is an excellent point made in your next-to-last paragraph. When you threaten a Hillary presidency under the malicious (in your view) framework created by Republicans, it brings into further clarity a thought I have pondered for quite some time. I’d be interested in your response.
I believe that a huge component of all the passion, venom, and rancor between Democrats and Republicans currently is because, simply speaking, SO MUCH is at stake in each election. The federal government, and even more the Supreme Court, has become so omnipotent, with their decisions reaching so far into the lives of common citizens, that a thoughtful caring person is forced to take up political and rhetorical arms in order to defend the ideals they cherish. Because these ideals–tracing back to the core of our nation’s founding– are increasingly subject to interpretation, “penumbras” and “emanations.” If not vigorously defended, these ideals, and even plain constitutional text, can be whisked away at Sandra Day O’ Connor’s most notorious whim.
I believe that as a thoughtful and well-meaning person, you have valid concerns that understandably invoke harsh condemnation of the excesses which you consider to be outrageous. What I wish you could understand is that I also am outraged by the (what I consider lunatic) excesses of the Left. E.g., I don’t want my innocent children discriminated against by my own government because they have white skin. I don’t want the government to confiscate half of the income that I work my ass off to produce. Etc ad infinitum…Do you see my point?
As a Democrat, I believe that you shoulder a greater responsibility for this unfortunate state of affairs than do I. I say this because your party has been so hostile to the original intent of Federalism and states rights; because the vast majority of your political victories have ONLY occurred through judicial fiat and not the will of the people; and because it is part and parcel of your doctrine to promote ever larger and ever more powerfully centralized government, you must recognize the wind you have sown and the whirlwind you now reap. Truly Andrew, as Democrats have cheered the abolishment of Federalism and rule by judiciary, did they think that a Republican would never be elected President? Did they imagine that a powerful voice such as Scalia’s would never be heard?
This is why I have to chuckle and shake my head at your vented fury. Who the Hell ever rendered such power to Washington in the first place? As a Republican, it wasn’t me.
And by the way, I think the first sentence of your original hypothetical would be an example of criminal conspiracy.
“Because of National Security you can put the Jews in Concentration Camps and kill them!”
When you find text from Yoo which echos that, then I’ll stand shoulder-to-shoulder with you.
Andrew: with all due respect to our own allies adn their fragile little “feelings,” who cares? The Geneva Conventions are what they are; they are not whatever you, our so-called allies, or anyone else happen to “feel” that they should be.
Whether our Afghan allies would have qualified as war criminals if captured by the enemy is purely academic, as their enemy wasn’t about to follow the Geneva Conventions anyway (as we generally have done voluntarily in Guantanamo, even though we knew they didn’t really apply).
Professor Yoo Update
Professor John Yoo has a fine article in today’s Dog Trainer explaining the rationale behind his memo regarding al-Qaeda, the Taliban soldiers and the Geneva Conventions. Read it. If you agree with Yoo, or at least agree that his ideas aren’t so fa…
The sole purpose of international law, as championed by the likes of Andrew Lazarus, is to restrain the actions of America. I wonder if Andrew shows half as much righteous indignation when it is Americans who are being killed as when it is Iraqis who are being
StuartT: You make an excellent point about how much is at stake, and I am going to surprise you and agree that Democrats have more than their fair share of the blame. Now I will go on to disappoint you: I mean the Southern Democrats (Dixiecrats). An awful lot of the centralization of power from 1865 onward arose from the refusal of the Southern states to acknowledge the implications of the Civil War for the rights of black people. Would the Supreme Court have gotten into the education business except half the country refused to provide it for black people in any serious way? I think not. Likewise gerrymandering. (Earl Warren was, of course, a Republican.)
Now, in this election, I think a tremendous amount is at stake because for whatever reason, we are faced with an incumbency whose claims to power (no habeas corpus for Padilla, suspension of the laws at the President’s whim, secret withdrawal from solemn international treaties ratified by Congress) overstep anything any Democratic Administration has ever claimed. If the American people fail to insist upon restoration of the proper relationship between the Executive Branch (in this election, it isn’t the Judiciary) and the People, we have much to worry about.
XRLQ: what exactly does it mean that the Geneva Conventions are what they are? There is no one outside the Bush Administration’s supporters who find any merit in its interpretation. If Bush had managed to persuade a neutral forum of the correctness of his wholesale designation of prisoners as “unlawful combatants”, I’d give your comment some credit. “Persuading” acolytes in the Heritage Foundation and right-blogosphere (rather, getting them to parrot the talking points without reading the primary sources) doesn’t count for much. (Would you have bought this argument from the Japanese prison commandants whom we hanged?)
Nieporent: It’s hard for me to believe you can’t distinguish between responsibility for acts of a third-party government and acts of our own government, even if they are (somewhat) less appalling. “Mommy, Jimmy did it worser.” If this is all you defenders of our Iraq Adventure have, your case is truly weaker than I could imagine.
For an analysis by a senior law professor of the rhetorical devices by which Yoo justifies torture, click here.
Andrew: Plainly we’ll never agree; probably even to what direction the sun sets. My point of the Left consolidating power in Washington for generations, only to be shocked (shocked!) when a Republican wields it stands undimished.
I could turn your example on it’s head over and over. A Republican Supreme Court could say that Roe not only must be overruled (horrors! this would return the issue back to the voting public–and Democrats can’t have that), but abortions nation-wide are to be illegal period. After all, half the country has refused to provide for the safety of unborn children in any meaningful way.
Would you like another? Ok, sure. A Republican Supreme Court could decide (on your cherished privacy grounds) to abolish your cherished income tax. After all, the Supreme Court wouldn’t have had to get into the tax-code business if half the country (Democrats) hadn’t refused to provide for the financial privacy and independence of all American citizens in any meaningful way.
And just one other note: I care less about Jose Padilla’s habeas corpus than I do about Barney Frank’s jock itch. Just because a person is not white, does not mean they are noble and/or a victim. This concept seems difficult for most Leftists to get their arms around. Mr. Padilla would slit your throat like a chicken’s, and not just yours, my fellow infidel. When your hometown is smoldering some dark future morning, I daresay you will join me in this sentiment. Or maybe not.
Richard, I noticed your use of “tortured” in quotes. I think you can safely add this term to the ever-growing vernacular of now meaningless left-wing buzzwords. Joining the ranks of “diversity” “tolerance” and “nuanced.”
StuartT, there is something downright bizarre in your insistence that government has too much power juxtaposed with complete indifference to the 800-y.o. right to habeas corpus. In the olden days (say, 1999), we had a trial before we jailed the likes of Padilla. He even got right to counsel and the right to present witnesses on his behalf and cross-examine is accusers. On so many fronts some sort of libertarian, but when the Administration cobbles up its argument against Padilla (some of which they already appear to concede was exaggerated), then StuartT is into having an echt police state. When you wake up and discover that they’ve turned the subject of the Two Minutes Hate to you, you’ll be sorry.
I don’t really see what your screed about abortion has to do with my (I thought uncontroversial) claim that intrusion of the judiciary into what you think of as political processes would have been a lot less without the need to disestablish Jim Crow. Am I to take it that Yick Wo and Brown rank up there with Roe in the SCOTUS Hall of Shame?
As far as torture goes, I would have thought rape and beating to death counted, but you know those Iraqis, they really enjoy it. Next week, Stuart and Nieporent on the “Holocaust”.
Andrew: You’re taking cues (and news) from Brad Delong, and I’M the one generating screeds?? Say hello to Toto and the Tin Man when you return to Oz.
In the olden days of 1999, Clinton was busy diddling women who were not his hideous wife, rather than dealing with the aftermath of 3,000 dead Americans. Or do you not recall?
And yes, we could provide your beloved terrorists with the full range of jurisprudential accomodations–and in the process learn absolutely nothing about Padilla’s network while at the same time exposing our entire intelligence system to cross-examination. God forbid American lives be saved!
And you of all people have the audacity to invoke the specter of the Two Minutes Hate? I’m not the racial demonizer here, my friend. I loathe totalitarianism. Speaking of which, the next time I hear you with a foul word for communism will be the first time.
And if you can’t see the the relevance of the abortion analogy, then there’s not much help I have to offer you. The point is that your political “needs” differ from mine. And when you allow a political judiciary to summarily decide these “needs,” you may not always be happy with the result.
Now, I have a Lyndon LaRouche campaign event to attend. I expect to see you there.
Andrew, I forgot to metion one last point before I left to meet you at the Bush-is-Hitler rally.
Your concern for the Iraqi people is truly touching. I’m certain they would fall weeping at your feet if they understood the depth of your compassion. That you so fervently wish they remained under the tender mercy of Saddam and his sons.
The thousands of Kurds dead from nerve gas (but Bush lied about WMDs!, oh yes); the rape and torture rooms (no quotes needed); the plastic shredders (head first if we like you); the utter misery of his kleptocratic totalitarian rule.
And you call their incipient democracy Bush’s horrid Iraqi Adventure. Yes, there is no doubt, the Iraqi people have a true friend in Andrew Lazarus.
StuartT, the Founding Fathers knew all about bad people like Padilla when they gave us the Bill of Rights. The Administration could have held a civilian trial for Padilla under special security circumstances, and they likely could have brought him into a military tribunal like the Quirin defendants. What they can not do under our system of justice is throw him in the brig without a trial, no matter how much fear of Al Qaeda makes you piss your pants.
Enemies of freedom always have some good-sounding excuse for the faint of heart. Germans decided that the threat of Stalin warranted handing over all their rights to Hitler. False patriots like you were in the front of the queue.
False Patriot? Coming from you, I say thanks for the compliment.
And since you are now apparently in the newly-discovered business of championing freedom. I’ll be eager to hear your positions on racial preferences, school-choice, free-trade, gun control, confiscatory taxation, and the myriad of government regulations. Or perhaps when speaking to you, I should call it “freedom.”
One last point, and I realize it’s a lost one on you. There is no freedom for the dead; liberty begins with life. And if Al Queda takes yours…well, we’ll finally have something to agree on.
Exactly that. Anyone can read them. You pretended to do that yourself, by (intentionally?) misquoting Section 4.A.6.
Nice rhetorical trick: if you support the Bush Adminstration’s “interpretation” that the Geneva Conventions mean what they say, you are a “Bush Administration supporter.” If you are too lazy to read the Geneva Conventions and prefer to think they prohibit everything you don’t like, then your “feelings” that the Geneva Conventions apply are just as valid as those of anyone who took the time to read them, or even a credible summary of what they do.
By that logic, if you had managed to persuade a judge and a jury that you’ve never murdered anyone, I’d give some credit to the notion that you might not be a serial killer. It’s not as though there is any legitimate debate as to whether or not the guys really were wearing uniforms.
XLRQ: The rest of the world says that uniforms or no uniforms, they can’t be declared unlawful conbatants without a hearing. Civilians don’t wear uniforms, and we’ve picked up some of those by accident. I don’t understand what part of the link you give supports your case. I quote (emphasis added): “They [unlawful combatants] may be killed or wounded and, if captured, may be tried as war criminals for their LOAC violations. (snip) Should doubt exist as to whether an individual is a lawful combatant, noncombatant, or an unlawful combatant, such person shall be extended the protections of the Geneva Prisoner of War Convention until status is determined. The capturing nation must convene a competent tribunal to determine the detained person’s status.”
Maybe I was too subtle. It is not that Bush has failed to persuade anyone not devoted to his Administration; the rest of the world including our allies thinks we are dead wrong on this issue. This isn’t the US stickin’ it to the bad guys all alone, High Noon. This is the US seriously off the rails.
“Should doubt exist” presupposes that there is serious basis for doubt. It’s a valid question as to civilians picked up by accident; it is not a valid question as to whether any ununiformed combatants were unlawful combatants.
And George Bush can tell one class from the other from the Oval Office? (Note, also, the first sentence I have quoted: “tried” implies “trial”. Even Nazi spies, saboteurs, and francs-tireurs got trials before being shot at dawn.)