I was startled to first see deeply buried in the June 13, 2009, New York Times that a federal district court judge in San Francisco had allowed the continuation of the trial of former senior Justice Department official John Yoo on charges of being a key enabler of the torture of American prisoners for the past seven years in Iraq, Afghanistan, Guantánamo, and “the black sites” of the Central Intelligence Agency’s secret prisons. President Barack Obama’s Justice Department had strongly urged U.S. District Court Judge Jeffrey White Smith to dismiss the case against the chief Bush-Cheney architect of this systematic torture policy. (Obama has continued an increasing number of his predecessor’s violations of our laws, including the U.S. Torture Act and international treaties forbidding torture.) This case, which is likely to eventually reach the Supreme Court, could also finally lead to congressional criminal investigations of these war crimes, despite Obama’s insistence that he would much rather “look ahead” than to the past.
Judge Smith began his ruling by quoting Alexander Hamilton in The Federalist Papers (No. 8): “War will compel nations most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free” (emphasis added).
The plaintiff in this case against defendant Yoo—then the most influential member of the Justice Department’s Office of Legal Counsel and designer of the infamous 2002–2003 “torture memos”—is American citizen Jose Padilla, who was held for nearly three years at a Navy Brig in Charleston, South Carolina, in darkness and without human contact other than his guards. Padilla wants Yoo to be held responsible for his brutal treatment.
I covered the facts of his ordeal—once lawyers were allowed to actually see and talk to him and then with me. Like so many American captives of the Defense Department, Padilla—as his lawyers from Yale Law School’s human rights clinic told Judge Smith—“suffered gross physical and psychological abuse at the hands of federal officials as part of a systematic program intended to break down Mr. Padilla’s humanity and his will to live.”
As Judge Smith said in his refusal to obey President Obama’s desire to make the case disappear: “Mr. Padilla has alleged sufficient facts to set in motion a series of events that resulted in the deprivation of Padilla’s constitutional rights.”
It was Yoo who advised President Bush, the Defense Department, and the CIA that “any means necessary could be used” to extract information from prisoners (“detainees” as Bush preferred to call them) to keep this nation secure from lethal jihadists.
Yoo and his supporters—including Dick Cheney, the editorial page writers at The Wall Street Journal, and various conservative law professors—contended, as Judge Smith pointed out, that a public trial “would likely uncover material information potentially damaging to national security. Yoo’s argument amounts to an assertion of the state secrets privilege.” George W. Bush and his Justice Department invoked “state secrets” more times than any of his predecessors to successfully prevent court cases from even being heard. And within the first three months of his presidency, President Obama and Attorney General Eric Holder moved to shut down three cases brought by victims of the CIA’s renditions (kidnapping terrorism suspects on the streets of other countries and “rendering” them to nations known for their torture expertise). President Obama’s choice to head the CIA, Leon Panetta, is continuing the internationally condemned renditions. But, he assures us, renditions continue only on a limited basis and only to countries that guarantee they will not torture suspects we deliver to them. This is the same song so often heard from George W. Bush and former Secretary of State Condoleezza Rice—despite copious documented reports of the cruelly imaginative instruments of torture used on those American guests. (For the core U.S. torture policy, see Administration of Torture, a documentary record by the American Civil Liberties Union’s Jameel Jaffer and Armit Singh, Columbia University Press.)
Cheney and others who object to the continuation of Yoo’s trial charge that its very existence, whatever the final verdict, will deter government lawyers from offering advice, often necessarily secret, to presidents and others at the highest levels of command. However, if the advice—like that provided by Yoo and a number of his colleagues at the Office of Legal Counsel—was in violation of their professional and ethical responsibilities, including their commitment to the Constitution, what kind of precedent of higher command lawlessness will that set for future administrations?
I cannot resist telling you of my one encounter with Yoo to illuminate the depth of his insistence that in time of war, the Constitution’s separation of powers must yield to the unitary executive, the commander in chief. In April 2005, Yoo and I participated in a panel discussion on “Rethinking the War on Terror” at the Woodrow Wilson School of Public and International Affairs at Princeton University. Yoo was by then once again a law professor at the University of California, Berkeley.
Addressing Professor Yoo, I recounted the testimonies of survivors of what I call his “outsourcing of torture.” His only reaction to my acute disdain for his legal advice that resulted in the “torture presidency” was to smile and say blandly, “I do enjoy reading Nat Hentoff on jazz.”
However, the dean of Woodrow Wilson School, Anne-Marie Slaughter, eventually elicited a very revealing response from Professor Yoo. “I simply can’t believe,” she said, looking directly at Yoo, “that as somebody who upholds the Constitution, you could think that it’s all right for the President to order the torture of individuals anywhere in the world. . . .
“We’re both law professors,” she continued, “so let’s spin a hypothetical. . . . I’ll grant you that we can debate where Congress’s power ends. But, as a government lawyer, you’re supposed to advise your client, the Executive, about what he can do. . . . And, if I hear you correctly, you are telling me that you would tell your client, the President of the United States, ‘You may order pulling out somebody’s fingernails [and] . . . You may order having somebody’s family member killed in front of them to extract information. You are empowered to do that under the Constitution.’ Are you really saying that our Constitution allows a President to order that?”
Like everyone on the panel, I leaned forward so as not to miss a word of Professor Yoo’s answer. He looked at Dean Slaughter and calmly responded: “Is there any provision that prevents him from doing that?”
As of this writing, I have no idea whether Jose Padilla’s lawyers will try to include that exchange in Yoo’s trial—or if Judge Smith would allow it on the record. But I would think that this clear disclosure of Professor Yoo’s concept of legal advice to the president of the United States would be quite relevant to Padilla’s lawyers’ determination “to vindicate [their client’s] constitutional right to ensure that neither Mr. Padilla nor any other person is treated this way in the future.”
I hope that President Obama, who is so reluctant to support any criminal investigations—even with full due process—of the war crimes of high officials of the Bush-Cheney administration, all the way up the White House, will pay close attention to John Yoo’s trial. Bush himself may yet become the subject of a criminal investigation into the war crimes he committed after taking Yoo’s official legal advice.