by Daniel N. White
March 11, 2010
John Yoo, the man who provided the legal rationalizations for many of our numerous and multifaceted war crimes in Afghanistan and Iraq during the Bush II administration came to speak in Austin last week at the University of Texas law school. I skated out from work a little early and went to see him speak.
Got there good and early to get a seat, and waited outside the auditorium while the Federalist Society types ran around trying to tie up all the loose ends. Clearly they weren’t my type of people–all the men were wearing identical black suit white shirt red tie outfits and looked, and acted, like a hybrid of John Belushi’s two nemeses in Animal House, Neidemeyer the preppy ROTC turd, and Marmelard, the smarmy student government sellout. Except that all the Federalist types were all short, with short-man personalities. Their Federalist Society women had a little more flexibility in their apparel, and all dressed well and looked physically attractive but all seemed wound rather too tight. Seeing them reminded me of a friend of mine’s remark about Sarah Palin–he’d thought she might be worth some naked time with but somehow he suspected she’d be a lousy piece of ass. They were both officious and incompetent–the line to the auditorium didn’t get sorted out until I stepped up and started it and gave some clear directions to the crowd milling outside there.
A much older fellow limped up and asked about if this was the John Yoo speech–fellow was well into his 70’s, and was leaning hard on a cane, and knowing how far he had to walk from wherever UT let him park made me wince on his behalf. Sorry, he was told, but this is a ticketed event, tickets were on sale at the UT law school yesterday, and if you don’t have a ticket you aren’t getting in. First I’d heard of that, and I took immediate issue with the Federalist society punk saying that and pointed out to him that none of the promotional material published or posted said anything to that effect and that they were skating on mighty thin legal ice trying to do this this late in the game and that they’d likely be breaking through that ice if I the first person in their line didn’t get in to see Mr. Yoo. I got a response from them about how there would likely be no-shows and I’d get the first no-show seat available. I went on to give the Federalist Society punk something of an earful for being that rude to a limping old man who almost certainly was an alum and who obviously from his clothes had money and who more likely than not was one of your own–none of which applied to me, me being dressed in work clothes, not an alum, physically large and fit, and dead-assed broke. I might have got through to him some, hard to say, because he didn’t say anything much back to me–none of the Federalist types were that interested in talking to anyone who wasn’t one of them. The older man wandered back and I talked to him and encouraged him to stay around and get a overflow seat and please take advantage of the bench there to sit down. Fellow turned out to be an alum from the ’50’s, who had never practiced but instead went to New York for a career in investment banking. He also let out that he was a member of the Federalist Society and was somewhat at odds with the current display of political acumen shown. Safe bet he won’t be donating to the UT chapter anytime soon.
The Federalist Society’s detail work on this event had me shaking my head. UT has quite strict rules about selling tickets for events and I am not at all current on them but from what I saw from what I knew a long time ago made me think that most of them were being broken at this event. Any right-thinking (left-thinking, actually) person or group so inclined should be able to investigate this and get the Federalist Society and its members both in fair hot water with UT. But I doubt that any will–after all, none of them had the snap to go buy one of the event tickets, go to a print shop, forge a thousand or two of them, and flood the event with their people. My source on the outside of the event, one of the approximately two dozen protesters, told me that there were plenty of ticket holders who were denied admission because the event organizers told them the event was full, which in fact it wound up being. Funny, I got in on an overflow seat, as did at least half a dozen other people who didn’t have tickets. I aint no attorney but selling more tickets to an event than the venue has seats and stiffing ticketholders in favor of non-ticketholders sounds like a fairly straightforward lawsuit for somebody. My source also told me that the Federalist Society snots didn’t let the reporter for the Austin American-Statesman in to the event. She tried to report this fact in her story–my source heard her arguing with her editor on her cell phone–but the AAS didn’t want to step on anyone’s toes, and, in a fairly typical bit of modern editorial cowardice this fact got left on the cutting room floor.
Audience was almost entirely law students. Essentially no participation by the UT professoriat; law or otherwise. All clean cut, about 95% Caucasian, in Texas, a majority-minority state, particularly in the student age cohorts. Looking at them was evidence of obesity nowadays’s being a class-linked phenomena–20% or better of college students nowadays are overweight, but there wasn’t hardly a single fatty in that crowd of future members of the ruling class. Yoo came out and gave a fairly dull speech about presidential power struggles with the law. Speech could have been given successfully to an 8th grade history class, it had that little in it for content and argument it had less. Yoo tried to get some of that old-time Socratic dialog going with his audience of law students by asking them which president was considered by historians to be the worst president and what legal case was the fundamental piece of case law about slavery in the US. I shouted out the answers to both when it became obvious that either UT law students didn’t know the answer to these two basic history knowledge questions (reasonably likely) or were too tame and timid to answer someone famous’ question (reasonably certain, and a rather interesting characteristic for future members of the ruling elite to have, eh?).
Yoo’s speech ended and the Q&A came around. UT’s administrators, are fairly happy these days to hold events with speakers and skip the Q&A part, sparing the visiting dignitaries that dreadful indignity, and I’m glad that wasn’t the case this time. I was second or third up to the microphone and was the recipient of a good deal of unpleasant warnings to behave myself from the Federalist Society member running the mike. My question was about how there was plenty of print and pictures of actions of the US government in Iraq and Afghanistan that showed extremely strong likelihood of UCMJ, GC and various other treaty and law violations. Additionally there was prior to the war much discussion in the chattering classes of Iraq’s oil was going to pay for our war costs there–hell I read columnists still saying that last year–and while there might be some room for argument on things like the March 20 2002 A-wire pictures there didn’t seem to me to be a lick of room for legal argument on a US seizure of Iraq’s oil revenues for its own economic benefit as being anything other than an open and shut violation of Article 33 of 4th Geneva. My question is then, Mr. Yoo, why is it that not a single attorney anywhere in this country ever bothered to raise these points in the public discourse? Don’t attorneys have a personal and professional obligation to do that? What good are attorneys to our society if they don’t do this?
Question got a rise out of the audience. Yoo answered it in a roundabout way but in a way that showed that he, and the Bush Administration, were cognizant of Article 33. His answer boiled down to his view that an attorney’s obligation is nothing more than providing his client legal advice; nothing else. Mostly, judging from a post-speech conversation I had with him while he signed books, he saw my question as nothing much but more tiresome non-attorney barking at lawyers.
I confess, I didn’t take notes about anyone else’s questions but none of them struck me at the time as being terribly well informed or formulated. The organizers were also taking questions in writing (for people who couldn’t get to a microphone??) to be asked by Mr. Yoo’s fellow UCB on stage with him, and I wrote a question about why Mr. Yoo’s DOJ had put a gag order on Sibel Edmonds and why hadn’t her accusations been investigated with an objective towards prosecution? I ran this question by the law students seated around me but all of them shied away from it–how much from ignorance and how much from cowardice I couldn’t say. I submitted it to the stage, but somehow Mr. Yoo’s colleague spared asking him it.
I can’t say that it was a pleasant evening, but it was an edifying one. The Federalist Society members on display that evening (the older gent excepted) were perfect examples of what John Dean described, in his latest book, of conservatives without conscience. Their going into the law with the objective of implementing their ugly ideologies in our society via their work in law, government, and politics should disturb us all. A reassuring part is that their individual and collective lack of personal and political skills should keep them from achieving that much of it. The worrying part is that these deficiencies of theirs can be corrected, corrected fairly easily in a top-down manner by a suitable leader giving them the appropriate orders to take some human version of dog training classes, and their power and influence would increase several-fold if that came to pass. They are, after all, the type of people who like to take orders. The vast majority of the law students I saw looked to me to be too ignorant of history, past and recent, and too set in deference to authority behavior tropes to do anything useful to prevent their Federalist colleagues from committing whatever atrocities against freedom and liberty would transpire should they achieve power.
Worse is that probably everyone in the audience agrees with John Yoo’s view of the professional responsibility of an attorney is nothing more than serving his clients’ interests, that there is no obligation to the greater cause of the law or the encouragement and promotion of greater understanding of the law, and greater adherence to the law in our society at large. Probably it is to be expected that law students would not understand that this diminution of professional responsibility will inevitably cause a diminution of their future professional status, because what John Yoo is saying is that attorneys are just hired hands like any other. No hourly employee can tell the boss no without being fired and the same then will be true of attorneys. But that’s their problem. The problem for the rest of us is that none of the 850,000 practicing attorneys here in the USA ever saw an obligation to the greater ideals of the law, of the law and public discourse and the proper functioning of our democratic system of government on critical life and death issues in play in the political realm, to write so much as a single op-ed  pointing out the gross variances between our policies (and proposed policies) and the law we live under and are supposed to obey. Not one single attorney in the past seven years ever saw fit to put a stop to the “Seize the Iraqi oil to pay for the war” nonsense that stank up the political discourse and directly promoted our going to war by writing a single 500 word op-ed explaining the clear language of Article 33. As objectionable as I find Yoo’s view of legal professionalism and a lawyer’s responsibility the fact is that the profession already almost to the last man jack already thinks that way. A critically important check on governmental or societal deliberate malfeasance has gone away and our society is the worse for it, and may yet be worse still from it.
Our two lost and pointless and sordid wars that we continue to wage are proof of deep and profound failures of American society and its institutions. The institution of the law is at the front of the line of these failures, and it has this place of ignominy from its members’ ignorant, narrow, selfish, and craven view of their professional role in our society at large. We as a society and people must acknowledge these failings and address them; the law, from its lead position in ignomy, now has the rare opportunity here to lead the way for the rest of us. I call on them to, starting now.
 James Buchanan, president from 1856-1860, because he is generally blamed, then and now, for doing nothing to stop the Civil War. The Supreme Court Dred Scott decision of 1857.
 UCMJ–Uniform Code of Military Justice–the unique body of laws that govern members of the US Armed Forces. GC–Geneva Conventions, the treaties regulating signatory states’ wartime behaviors. The US is a signatory to the 4th Geneva Conventions of 1949, and under Article 4 of the US Constitution that makes this treaty’s provisions the supreme law of this land; obeying them cannot be set aside by action of Congress, the Executive, or the US courts, unless the treaties themselves are de-ratified by the US Senate.
 A-wire–the Associated Press’ worldwide wire service. The famous pictures of the orange jump suited, kneeling, blindfolded, mitttened, earmuffed, gagged, handcuffed, chained prisoners in Guantanamo undergoing some sort of interrogation by a uniformed service member. This picture shows sensory deprivation torture in action, by any reasonable estimation of same, and said sensory deprivation torture is prohibited by US law, the UCMJ, by a UN treaty against torture that the US has signed, and by the 4th GC. Great Britain was run up in the European Court for Human Rights in Strasbourg in the 80’s for doing this to IRA prisoners, and convicted, and had to pay substantial damages to the IRA plaintiffs. I had the opportunity to ask US Congressman for Life and former Texas Supreme Court Justice Lloyd Doggett about this one time when he had a couple of drinks under his belt and his answer was that we’d be wise to set aside a bunch of money to settle the lawsuits that are going to come from this nonsense because we can’t win them. The fact that the plaintiffs were members of the IRA, a non-state actor, and yet they had standing in court to sue Great Britain, a state actor, rather undercuts much of the Bush administration arguments about our interrogation practices being exempted from UCMJ and GC purview because the detainees were non-state actors. None of these historical or legal issues have seen the light of day in American journalism.
 Article 33 of 4th Geneva states in fairly clear and explicit language that an invading power cannot seize the natural resources or national patrimony of the invaded country for its own benefit. Our grabbing Iraq’s oil revenues to offset our war costs would obviously violate this provision. What also wasn’t ever remarked on by our chattering classes was the basic arithmetic of US war costs compared to the dollar value of Iraq’s oil production. My back of the envelope calculations had our seizing all of Iraq’s oil production, at the most optimistically overstated level of production, and selling it all successfully on world oil markets, and using the most optimistically understated US war costs, had a (2005) war breakeven cost of more than $500/bbl. The entire of the chattering classes skipped this boring bit of arithmetic, apparently.
 The German bar faces a similar question in regards to its complete collaboration with Hitler and Nazism. To the best of my knowledge, there wasn’t a single German judge or lawyer who stood up and objected to Hitler’s replacement of the entire of German jurisprudence with Hitler diktat. One day they were sentencing Germans to death by garrotte for telling anti-Hitler jokes and the next they were sentencing Germans to prison for having Nazi armbands in their dresser drawers. It was all done quite out in the open–see former UN Secretary-General Kurt Waldheim’s 1944 law dissertation. In the postwar years, I am told that there has been some considerable soul-searching in print by the German Bar about its collaboration with Nazism–after all, each and every single heinous act of the Nazi state was a lawful act fully in accord with German law. If any of this material has ever been translated into English I am unaware of it, and would greatly appreciate word of it from anyone about it. Seems to me that American lawyers could get ahead of the curve by learning German and reading this material to see how they’ve grappled with these questions, because except for the CCR and NLG boys and girls American lawyers behaved in the face of obvious USG lawbreaking in the Bush (and now Obama) years and wars exactly as their German counterparts did in the Nazi years and wars.
 DOJ–U.S. Department of Justice. UCB–University of California, Berkeley. UCB is the flagship campus of the University of California system, and can be reasonably argued as being the premier public college in the entire world. John Yoo is now a tenured full professor of law there. Sibel Edmonds was a FBI translator of Turkish and Farsi who while transcribing and translating FBI wiretaps came across exceedingly horrendous tales of Congressional and Executive Branch corruption by foreign powers, Turkey first and foremost. Some of this involved US nuclear weapons information being sold to Turkey by these parties. Her charges have gone uninvestigated and she has been under a DOJ gag order for several years. Edmonds argues that some of what she uncovered constitutes treason. A good account of her story can be found in a recent issue of The American Conservative.
 Mr. Yoo did say afterwards, after a bit of headscratching, that there were some op-eds in the Wall Street Journal on some of these issues by this one attorney he named (and who I forgot, of course.) I never saw them reprinted in any paper or periodical I read.
Margaret Flowers: Tangled Up in Yoo
John Yoo-4th Amendment-Torture
Sibel Edmonds: The Traitors Among Us by Brad Friedman
Philip Giraldi on Antiwar Radio + Conservative Mag: Sibel Edmonds Speaks, But No One is Listening
Sibel Edmonds: Kill The Messenger (must-see video)
Daniel, your source that you cite in the paragraph below did not have the full story:
“My source also told me that the Federalist Society snots didn’t let the reporter for the Austin American-Statesman in to the event. She tried to report this fact in her story–my source heard her arguing with her editor on her cell phone–but the AAS didn’t want to step on anyone’s toes, and, in a fairly typical bit of modern editorial cowardice this fact got left on the cutting room floor.”
Our reporter was initially told by someone at the door that she could not attend because she didn’t have a ticket. But she called and spoke to an editor, who gave her info for the public relations person who notified us of the event. The issue was resolved within 10 minutes after it was clear the reporter had been invited, and the reporter attended the speech. There was no point in wasting space writing that the reporter was first not allowed in, then allowed in. Next time you have a question or ‘source’ info you want to check regarding our coverage, feel free to give us a call.
Thankyou for this insightful report, though I think the sexist (as I see them) comments about Federal Society women were unhelpful and objectionable. I particularly like the suggestion that materials on law from the Third Reich should be translated and made available – would be interesting to find out how much Yoo and others cribbed. Wanna bet on that? Don’t be surprised. I think it would be good if, in general, materials showing the complicity of the intellectual class with the Third Reich would be translated and published widely. I think it might open some folks’ eyes to what has been going on in the US, to the fact that you can’t necessarily trust the intellectual class because, remember, their careers are closely tied to the moneyed elites, same as in politics and journalism. The same dynamics apply. The ‘ivory tower’ isn’t less dependent on the elites. It’s arguably MORE dependent. THEY KNOW WHERE THEIR BREAD IS BUTTERED.
At the same time, there may be many, many lawyers who are unhappy with what is going on, but who feel isolated. An organization like Architects and Engineers for 911 Truth, but not about 911 so much as about the various outrages against law and justice that happened before 911 and at an accelerated rate after 911, might provide a focal point for those who might need it. But one would need to find a lawyer as committed and effective as Richard Gage is for architects, and that might be tough!