John Yoo's Tortured Explanations

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By Michael Winship

"John Adams," that entertaining and instructive TV mini-series based on David McCullough's biography, is a reminder that, in some respects, nations are created as much from rancor and ego as they are from hope and goodwill.

In the television version of the irascible Mr. Adams's saga, democracy triumphs. Still, while watching it, I can't help but be a little depressed by the thought that while the Founding Fathers sought to build a government of laws rather than men and were crafting such worthy documents as the Declaration of Independence and the Constitution, the current administration's legacy to history will be a series of documents that chose to subvert the very Constitution that Adams, Jefferson, and the others battled so hard to create.

These documents reveal themselves slowly and reluctantly, as if to acknowledge that those who wrote them know deep in their souls what they have done is wrong and antithetical to the ways of a republic.

The latest to ooze its way to the surface, thanks to a Freedom of Information Act suit by the ACLU, is the March 14, 2003, memo written by John Yoo, former deputy in the Justice Department's Office of Legal Counsel (OLC), an acolyte of David Addington, Vice President Cheney's chief of staff and former Cheney legal counsel.

Contrary to claims the abuses at Abu Ghraib and other prisons were contrived by subordinates on the ground - i.e., "hicks with sticks" - Yoo's 81-page memo rationalizes motive and establishes the bar for virtually every human rights violation that has taken place in the name of fighting the global war on terrorism.

It is, in the words of Dan Froomkin, author of The Washington Post's irreplaceable "White House Briefing" blog, "a historic document ... the ultimate expression of Cheney's belief that anything the president or his designates do - no matter how illegal, barbaric or un-American - is justifiable in the name of national self-defense.

"It is also an example of how enabling zealots to disregard the rule of law and the customary boundaries of human conduct leads to madness."

Froomkin's description of the memo was echoed by The Post's Dan Eggen and Josh White, who added, "Nine months after it was issued, Justice Department officials told the Defense Department to stop relying on it. But its reasoning provided the legal foundation for the Defense Department's use of aggressive interrogation practices at a crucial time, as captives poured into military jails from Afghanistan and US forces prepared to invade Iraq.

"... The memo provides an expansive argument for nearly unfettered presidential power in a time of war. It contends that numerous laws and treaties forbidding torture or cruel treatment should not apply to US interrogations in foreign lands because of the president's inherent wartime powers."

It was this memo, among others, that was shown to Maj. Gen. Geoffrey Miller, who had been in charge of detainees at Guantanamo Bay, when he was reassigned to "GITMO-ize" detention operations in Iraq ("GITMO-ize" being the word he used to Brig. Gen. Janis Karpinski, then commander of military prisons in Iraq, including Abu Ghraib).

Perhaps not insignificantly, as noted by Georgetown law professor Marty Lederman, formerly with the OLC, "The vast majority of the criminal abuse in Iraq occurs between Miller's arrival and December 2003 (In December 2003, new OLC head Jack Goldsmith informed the Pentagon that it should no longer rely on John Yoo's legal analysis.)."

As if this weren't enough, a footnote in the March 2003 memo reveals a second John Yoo masterpiece that blithely undermines the Constitution, in this case, the Fourth Amendment right of the people to be secure against unreasonable searches and seizures.

Written on October 23, 2001, not even a month and a half after 9/11, this still-classified Justice Department memo, titled, "Authority for Use of Military Force to Combat Terrorist Activities Within the United States," held that the Fourth Amendment had no bearing on domestic military operations.

Although now disavowed by the White House, according to The Associated Press (AP), "For at least 16 months after the Sept. 11 terror attacks in 2001, the Bush administration believed that the Constitution's protection against unreasonable searches and seizures on US soil didn't apply to its efforts to protect against terrorism."

AP quoted Jameel Jaffer, director of the ACLU's National Security project: "The administration's lawyers believe the president should be permitted to violate statutory law, to violate international treaties and even to violate the Fourth Amendment inside the US They believe that the president should be above the law."

In 1977, most of us laughed in astonishment after a disgraced Richard Nixon said to David Frost, "When the president does it, that means that it is not illegal." Turns out that belief is standard operating procedure in the White House of George W. Bush, Dick Cheney, and their enablers, such as David Addington and Yoo, who now teaches at the University of California, Berkeley.

According to several sources, one of the "inspirations" for the techniques used against real-life detainees has been the Fox TV series, "24." In my own mental TiVo, the great John Adams is to John Yoo what the intelligent "John Adams" TV series is to a different program on Fox, that sordid reality game show, "The Moment of Truth," in which contestants are hooked up to lie detectors and interrogated about infidelities and other vices.

But on the game show, only the viewers are tortured.