race to disgrace: countdown to asian american sellouts
#2 John Yoo
by lina peng
This article should not be a hard one to write. After all, wasn't John Yoo the guy who condones the torture of babies? That right there surely would be enough to put him on our list and I would've had a ball convincing our layout staff to put my baby picture next to a demonized picture of Yoo, just to get the point across. But before we all go picket outside his Berkeley office (yes, he teaches at Boalt) again, take a moment to read this edition of the hardboiled's countdown as a "Yoo" consciousness raiser for you.
Yoo authored the notorious Justice Department "torture memos" in 2002-2003 (one was recently declassified and is now available online). He has since then been widely criticized as providing the legal justifications for the Bush Administration's unlawful conducts in detaining suspects, harsh interrogation techniques among other controversial methods. The overall principle that the memo adopts is, "In wartime, it is for the President alone to decide what methods to use to best prevail against the enemy." If we accept that assumption, however frightening it may be, the rest of Yoo's memo is not surprising. It argues the President has the power to override domestic criminal law and international law if he so decides it is in the interests of national security. Yoo took the time to define torture very narrowly (from which most of the controversy surrounding him arises) so that Presidential action may be defensible within the framework of international laws, even if the President is not obligated to follow them. If Yoo is a brilliant scholar, he isn't so hot with public relations. The media has had a field day vilifying him with cringe worthy but clearly taken out of context quotes like this one during a debate with Notre Dame Professor Doug Cassel:
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?
Yoo: No treaty.
Cassel: Also no law by Congress. That is what you wrote in the August 2002 memo.
Yoo: I think it depends on why the President thinks he needs to do that.
Now come on, that just sounds bad. But let's be clear though, he isn't advocating the use of torture. He interpreted the Constitution to give the President the broadest legal authority possible to do whatever the President feels will best defend national security during war, which could include questionable means of interrogation but not necessarily.
The critics have charged Yoo's memo as granting the legal basis for the abuses of prisoners at Abu Ghraib, Guantanamo Bay, and excesses of the USA PATRIOT Act. Some go as far as blaming Yoo for spurring such actions. Policy, however, is not made by memos. General policy direction is first decided upon (for example by the Bush Administration) then legal scholars are called upon to give the means to defend the policy's constitutionality. Yoo's memo was propelled to the forefront because it sat most favorably with Bush Administration policies, not the other way around. The PATRIOT Act, however objectionable you may find it, was passed by Congress, representatives of the people. Ultimate accountability for the consequences of those policies must lie with Congress or the White House. We should not stifle intellectual discourse because we disagree with what it says or with its imperfect real world applications. The responsible thing for aspiring advocates and lawyers interested in defending civil liberties is to first understand the arguments made by the other side instead of simply dismissing them as distasteful. That self proclaimed open minded and no doubt First Amendment espousing Berkeley students would attempt to oust Yoo because of what he wrote is amazing to me. If anything, we should fight to keep Professor Yoo here if merely to understand and gain insight into the "enemy's secrets".
Yoo's memo highlights the ongoing tension between considerations of national security on one side and civil liberties on the other. No matter how each of us may personally feel, it is a fact that many Americans, including those who hold the power to make important decisions, did and perhaps still believe that in light of September 11th and the nature of terrorism, different tactics may be needed to defend national security, some of which may have to conflict with certain civil liberties. Civil rights do not exist absolutely in a sacred vacuum, but are constantly being balanced against other social interests such as order or stability. The most hackneyed example involves not being able to yell "fire" in a crowded theatre, but other restrictions on our behavior abound and most of us accept at least some of them as necessary. One of the problems with Yoo's memo, however, is that the nature of the "war on terror" is ongoing and persistent. There is no bright line for declaring victory. If we will always be in some state of war, the President will have permanent authority to override civil liberties whichever way he deems fit. That not only destroys the meaning behind the "wartime" qualification but certainly does paint a slippery slope demise for civil rights which I personally find very disconcerting.
To believe that security considerations do not exist and civil liberties ought to be protected absolutely all the time is naïve and potentially very dangerous if another September 11th is not prevented. Similiarly, to subvert civil liberties haphazardly and illegally in the name of national security has proved highly disturbing and detrimental. The challenge then, as my legal studies Professor Martin Shapiro pointed out the other day, is one of economics. In a world of inevitable tradeoffs, how do we protect our families, homes and indeed our lives, while doing the least damage to things we could not live without, our civil liberties? This is a call out for you, for us, to come up with such a way, because that will be the most powerful challenge against Yoo's ideas.