A Reader Writes In About Yoo and Torture

A reader writes in to say,

You MUST read Jane Mayer's “Outsourcing Torture” in the New Yorker. Get a load of what Yoo's saying now:

Yoo also argued that the Constitution granted the President plenary powers to override the U.N. Convention Against Torture when he is acting in the nation¡'s defense—a position that has drawn dissent from many scholars. As Yoo saw it, Congress doesn't have the power to “tie the President's hands in regard to torture as an interrogation technique.” He continued, “It's the core of the Commander-in-Chief function. They can't prevent the President from ordering torture.” If the President were to abuse his powers as Commander-in-Chief, Yoo said, the constitutional remedy was impeachment. He went on to suggest that President Bush's victory in the 2004 election, along with the relatively mild challenge to Gonzales mounted by the Democrats in Congress, was “proof that the debate is over.” He said, “The issue is dying out. The public has had its referendum.”

In other words, “a vote for Bush is a vote for torture.” Jesus H. Christ, he actually SAID it.

As Constitutional doctrine it's not just offensive, it's also fairly silly. Congress has several Article I powers, not least the power to regulate the armed forces, which make it clear that it has the power to prevent torture. And then there's the power to implement treaties, which the Constitution itself says are the highest law, equivalent to the Constitution itself….

(Note to fellow lawprofs — who ever thought the right wing would be embracing Ackerman's theory of amendment via 'constitutional moments' so quickly?)

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13 Responses to A Reader Writes In About Yoo and Torture

  1. Katherine says:

    Also the power to set the rules for captures on land and water, and to define and punish offenses against the law of nations. Four, count ’em, four, separate affirmative delegations from Article I.

  2. Katherine says:

    That whole “he shall take care that the laws are faithfully executed” seems to have escaped him too….I think you’ve posted this before, but it’s worth a repeat.

  3. Chris says:

    I like this guy–he gives straight answers! Unlike Gonzales, who equivocated and doublespoke so much that taking a pizza order from him would require at least ten tries to get right.

    Seriously, we have an insider telling us that the White House has been given (up to the leaking of the torture memos) secret legal advice to carry out what amounts to a so far bloodless coup d’etat by the executive branch, with the active complicity of the Republican party. The takeover’s not complete yet, but I think that given the choice between an America with its traditional form of government, versus an Amerika under a Republican theocratic dictatorship, the “Proud to be an American” bumper-sticker people will go with dictatorship. Where’s Nigel to prove me right?

  4. Basharov says:

    Hmm, let’s see. A little-known professor at the University of Colorado writes an article three years ago in the white heat of anger immediately after the attack of 9/11 that argues that some of those who died in the Twin Towers and all those who died in the Pentagon were conscious participants in an American system of economic, political, and military imperialism that has caused mass death, destruction and misery around the world. He further argues that these “technocrats” of the Empire were not innocent victims of an irrational group of Muslim fanatics who were driven to kill because of their hatred of America’s freedom; instead, they were killed in retaliation for their willing participation in the Empire’s war against the powerless, whose representatives have finally discovered the means to bring the war home to the center of the Empire. The professor inadvisedly refers to those who died in the World Trade Center as “little Eichmans” and he fails to make it clear that he is only talking about the “technocrats” and not about the waiters, janitors, and other innocent bystanders who were killed. The Right Wing Noise Machine gets wind of what this professor wrote three years ago, prevents him from speaking at a small college, and whips up a media frenzy that results in the Governor of Colorado demanding that the professor be fired. The professor himself is subjected to death threats, vandalism against his property, vilification from all sides of the political spectrum, demands that he be silenced and leave the country, and the usual blatherings of outrage from the punditocracy and self-appointed arbiters of permissible speech. The professor is now despised by the majority of his fellow Americans, in danger of losing his livelihood, and branded as “the face of the American left” by nitwits who run inexplicably popular weblogs.

    And then we have another professor. This one is on the faculty of a prestigious law school at one of America’s premier state universities. He has recently returned from a stint working as a legal advisor for the President of the United States and the Secretary of Defense. In that capacity, his job was to create legal justifications for the torture, humiliation, degradation, and imprisonment without end of persons captured by the U.S. military during America’s vaguely defined “war on terror.” Horrifying evidence about the regime of torture and terror that this professor helped to establish has now surfaced in official documents grudgingly produced under the Freedom of Information Act and in the testimony of prisoners released to the British government, which has found no reason to charge them with any crime and has set them free. This evidence shows to a reasonable certainty that this professor is a war criminal who has helped to create a network of prisons in which torture is rampant and the law is whatever the President of the United States wants it to be. Now that this information is available, has the Governor of California threatened to remove him from his job? Is his livelihood threatened? Is he shunned by his colleagues? Has he been subjected to hostile interrogation by Fox News anchors or the Sunday gasbags? Is he now the “Face of Abu Ghraib”?

    Hardly. Instead, he’s settled comfortably into his office at the law school, undoubtedly preparing his lectures on Constitutional law, and dreaming of one day becoming a federal judge, just like his co-writer of the torture memos, Jay Bybee.

    Is this a great country, or what?

  5. Whoever thought the left wing would be abandoning it so quickly? LOL Seems the Constitution is only living so long as the left gets to make the “changes”…

  6. Chris says:

    Thanks for taking the bait, Brett! (You’ll do, in place of Nigel).

    Could you kindly point out any left-wing sentiment on this thread? I don’t see anything except contempt for Bush’s policies on torture or autocracy. But people who mindlessly buy Republican propaganda argue that anyone who dares question our God-appointed president is in with the “evil left.” The nazis did that too. Indeed, people who saw the wisdom of limiting of government power were once called “libertarians,” don’t you know? Now they are traitorous liberals. Libertarian does sound like liberal–I can see why you get confused sometimes. Or else they become ethically challenged turncoats.

    Anyway, you duck the issue raised in your own comment and by others on this thread. After what Yoo’s been proposing, the Constitution won’t be “living” much longer. To wit, when a president is free to ignore law on a whim, there is no constitution. For years, religious types have been resolving contradictions in the bible, and people seem to buy it. It would be amusing to hear you defend how Yoo’s proposal of unfettering the president from the strictures of law in any way preserves or promotes American values. By all means, go ahead!

  7. washerdreyer says:

    Brett frequently says things in comments that I find disagreeable, wrong, or otherwise problematic. Here, I think his comment was too glib, but if reading Yglesias’s blog has taught me one thing, it’s that Brett really enjoys pointing out, “Your side is just as bad.” But your response has nothing to do with what he said. He was making the glib argument that liberals accepted that the constitution could be substantively changed in ways other than the amendment process (ie., The New Deal) when the changes were being made by liberals (am I getting Ackerman right here?) but now object to the similar change being made by the Bush Administraton. I would argue against this that there certainly wasn’t universal agreement with Ackerman from the left, and that if one does agree with him, it still wouldn’t be the case that this is equivalent to the New Deal situation.

  8. Chris says:

    This makes sense to me, I suppose, though its not quite fair to carry over a debate from a old site without informing people on the new site of the issues.

    I once pointed out to Brett that now isn’t the time to settle old scores with the democrats (who are pretty much toothless anyway) but to save what can be saved from the Republicans. One would think that Brett would object to Yoo’s memo as it opens the door to potential (further?) liberal tyranny as much as Bush’s tyranny, assuming liberals can ever get their act together. He didn’t indicate any opinion about the Yoo memo, except what one might infer from the gratuitous name-calling of its critics. Thus, my response.

    Based on your information, it appears he’s saying that the Republicans are getting their due. Fine, Brett–lesson learned twenty of your posts ago. Can we move on to understanding and dealing with the present problem and not revisit old scabs?

    Thanks for enlightening me, washerdreyer.

  9. Evelyn Blaine says:

    John Yoo may think that the “issue is dying out” after the torture plebiscite, but there are a hell of a lot of us who aren’t about to let it. Every time I read another article on the subject, my convictions become even firmer: those responsible must face trial for this. I don’t care if it takes twenty years, or thirty, or forty. I don’t care if those not yet even born have to bear the burden of dragging the superannuated, senile bodies of the last of the torturers before the cameras, Pinochet-style, to answer for crimes half-fallen into oblivion. I’m not forgetting, and I’m not forgiving. Everyone involved in the waterboarding, the beatings, the “extraordinary renditions,” at any level, is a criminal. And their acts have brought obloquy on my country and its Constitution. Some day they will answer for it.

  10. Nell Lancaster says:

    :: this a great country, or what? ::


    Evelyn: I’m right there with you. It does usually seem to take at least 25 years…


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