Ten years ago, on the evening of March 28, 2002, the Bush administration officially embarked on its “high-value detainee” program in the “war on terror” that had been declared in the wake of the terrorist attacks on September 11, 2001, when Zayn al-Abidin Muhammad Husayn (more commonly identified as Abu Zubaydah), was captured in a house raid in Faisalabad, Pakistan.
(SOAPBOX #77) – Cindy has two wonderful guests: Starting with Debra Sweet, the woman behind World Can’t Wait. Debra came into town for the recent Berkeley Says “NO” to Torture event, October 10 – 16, and managed to drop by our studios. Cindyalso welcomes famous Independent Journalist Andy Worthington, author of The Guantánamo Files. Continue reading
Under President George W. Bush, a small group of advisors tied closely to Vice President Dick Cheney argued that neither Congress nor the judiciary should attempt to prevent the President from doing whatever he felt was appropriate as the Commander-in-Chief of a “War on Terror” that was declared after the terrorist attacks of September 11, 2001. As Sidney Blumenthal explained in an article for Salon in January 2006, the President and his advisors believed in the “unitary executive” theory — “the idea that the President as Commander-in-Chief is the sole judge of the law, unbound by hindrances such as the Geneva Conventions, and possesses inherent authority to subordinate independent government agencies to his fiat.” Blumenthal added, accurately, that this concept was “the cornerstone of the Bush legal doctrine.”
The extreme position taken by John Yoo regarding Presidential power
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.
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This video may contain images depicting the reality and horror of war/violence and should only be viewed by a mature audience.
February 28, 2010
Margaret Flowers singing a song by David Swanson based on Bob Dylan’s “Tangled Up in Blue.” Protest John Yoo on March 19, 2010, in Charlottesville, VA. See http://hoosagainstyoo.org
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GRITtv with Laura Flanders
Feb. 24, 2010
The Bush administration thrived on secrecy; Obama promised more transparency, but has yet to really deliver. What’s more, when information does come out, it seems that accountability is nearly impossible to get: the torture memos were released, but there will be no trials. We ask Daniel Ellsberg, one of the world’s most famous whistleblowers, if there’s anything the people can do to take the power back.
The long-awaited report by the OPR (the Justice Department’s Office of Professional Responsibility) into the conduct of the lawyers in the OLC (Office of Legal Counsel), regarding their role in approving the use of torture, has finally been published (PDF).
The report largely focuses on two memos dated August 1, 2002, and a third dated March 14, 2003. Widely known as the “torture memos,” these notorious documents sought to redefine torture so that it could be used by the CIA (and by the US military in the March 2003 memo), and the report concludes that the primary author of the memos, John Yoo, an OLC lawyer who is now a law professor at Boalt Hall, the University of California’s School of Law in Berkeley, and the senior official who signed the August 2002 memos, Assistant Attorney General Jay S. Bybee, who is now a judge in the Ninth Circuit Court of Appeals, were guilty of “professional misconduct.”
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by Michael Isikoff
February 19, 2010
The chief author of the Bush administration’s “torture memo” told Justice Department investigators that the president’s war-making authority was so broad that he had the constitutional power to order a village to be “massacred,” according to a report released Friday night by the Office of Professional Responsibility.
The views of former Justice lawyer John Yoo were deemed to be so extreme and out of step with legal precedents that they prompted the Justice Department’s internal watchdog office to conclude last year that he committed “intentional professional misconduct” when he advised the CIA it could proceed with waterboarding and other aggressive interrogation techniques against Al Qaeda suspects.
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By Marisa Taylor
Feb. 19, 2010
WASHINGTON — Two former high-level Bush administration officials who provided legal justification for harsh interrogations of overseas terror suspects are likely to escape any formal punishment now that the Justice Department has concluded they should not be held legally responsible.
In a long-awaited report released early Friday evening, Deputy Associate Attorney General David Margolis said that former department lawyers John Yoo and Jay Bybee should not have their law licenses revoked as a consequence of their legal advice to the Bush administration signing off on the controversial interrogation methods.
by Kate Randall
2 February 2010
Bush administration lawyers whose secret memos justified waterboarding and other forms of torture will not be referred to authorities for possible sanctions, according to a forthcoming ethics report.
Unnamed sources who spoke to Newsweek magazine said the Obama Justice Department’s Office of Professional Responsibility (OPR) has concluded that John Yoo and Jay Bybee, who penned the infamous memos, used “poor judgment” but will not be subject to disciplinary action. Yoo and Bybee worked in the Justice Department’s Office of Legal Counsel, along with Steven Bradbury, who is also named in the report.
October 07, 2009
Tortured Law, a new 10-minute documentary by Alliance for Justice, examines the role lawyers played in authorizing torture, and calls upon Attorney General Holder to Join those calling on Attorney General Eric Holder to release the report of the DOJ Office of Professional Responsibility, and hold accountable those who ordered, designed, and justified torture.
You can join the call by signing Alliance for Justice’s petition http://ga1.org/campaign/release_tortu…
Sign up to host a screening in your area: http://www.afj.org/films-and-programs…
Vodpod videos no longer available.
Proposed Appropriations Bill To Give Defense Department Authority To Suppress Torture Photos (10/7/2009)
Congressional Conferees Agree To Language Allowing Defense Department To Exempt Photos From Freedom Of Information Act
FOR IMMEDIATE RELEASE
CONTACT: (646) 206-8643 or (212) 549-2666; email@example.com, or (202) 675-2312; firstname.lastname@example.org
WASHINGTON – According to a conference summary, House and Senate conferees today approved language for the homeland security appropriations bill that, if passed, would grant the Department of Defense (DOD) the authority to continue suppressing photos depicting the abuse of prisoners in U.S. custody overseas. The language described in the summary appears to incorporate an amendment put forth by Senator Joe Lieberman (I-CT) that would allow DOD to exempt the photos from the Freedom of Information Act (FOIA). The photos were ordered released by a federal appeals court as part of an American Civil Liberties Union FOIA lawsuit.
The Spanish newspaper Público reported exclusively on Saturday that Judge Baltasar Garzón is pressing ahead with a case against six senior Bush administration lawyers for implementing torture at Guantánamo.
Back in March, Judge Garzón announced that he was planning to investigate the six prime architects of the Bush administration’s torture policies — former Attorney General Alberto Gonzales; John Yoo, a former lawyer in the Justice Department’s Office of Legal Counsel, who played a major role in the preparation of the OLC’s notorious “torture memos”; Douglas Feith, the former undersecretary of defense for policy; William J. Haynes II, the Defense Department’s former general counsel; Jay S. Bybee, Yoo’s superior in the OLC, who signed off on the August 2002 “torture memos”; and David Addington, former Vice President Dick Cheney’s Chief of Staff.
It Could Happen to Yoo
By David Swanson
Thu, 2009-06-18 17:36
Sometimes, during a tsunami of bad news, it’s nice to come up for a breath of encouraging air. The only way to do that this week that I know of is to read a beautiful 42-page order by a judge (PDF). Usually such things don’t strike me as beautiful, but this one says that leading torture lawyer John Yoo can be sued in court by one of his victims. It also says that his arguments for immunity are a load of crap, his arguments for the legality of torture are at least plausibly as fetid a pile of feces as they appear to the naked eye, and the treatment received by Jose Padilla is rather glaringly in conflict with our laws, basic standards of decency, and the wisdom of those who have gone before us and warned against sacrificing our rights on the temple of war. Here’s an analysis of exactly how well thought out (not just beautiful) this order is, and how very likely it is to withstand challenge.
So, while Congress and the Ministry of Truth, er … I mean the Department of Justice (DOJ), hold off on any attempts to hold anyone accountable for torture until the DOJ’s Office of Professional Responsibility releases a report on the conduct of Yoo, Jay Bybee, and Steven Bradbury — a report already delayed for six weeks of integrating edits made by the three men who are supposedly the subject of the report — a judge, by simply comparing Yoo’s publicly available confessions in the form of torture memos with actual legal standards, has produced the outline of an indictment that a special prosecutor could pick up and use to put John Yoo behind bars. The only thing missing is the creation of such a special prosecutor, something Attorney General Eric Holder would have to do. Meanwhile the House of Representatives is impeaching a judge for groping female employees, but can’t be bothered to impeach another judge, Jay Bybee, who was John Yoo’s boss during much of the torturing, who himself signed torture memos, and who signed a memo purporting to place the “legal” power of aggressive war in the hands of any president.
From an email.
April 14, 2008
Just a few days ago, we sent you an alert, urging you to contact the University of California Berkeley Law School about Professor John Yoo. Because of his direct involvement in the Bush administration’s sanctioning of torture by U.S. interrogators, we asked you to join us in calling for his dismissal. Nearly 7,000 individuals on our E-mail list responded to our call. And it appears as if the outcry had an impact.
Pasted below is a response on the subject from Dean Christopher Edley, Jr., the man to whom E-mails from our site were directed. Although he is refusing at this point to dismiss Professor Yoo, he did provide a long and thoughtful statement. Since you have heard our side of the argument, we wanted to share his response with you, as well.
We also wanted to take this opportunity to underscore that the American Freedom Campaign is 100 percent supportive of the First Amendment and respects the academic freedom that tenure is designed to protect and encourage. It cannot be stated strongly enough that we are not opposed to “Professor” Yoo stating an opinion; we are opposed to “government lawyer” John Yoo violating his obligation to defend the Constitution and serve the American people. He was asked to provide a legal justification for torture and ignored every possible ethical — and perhaps legal — obligation in existence to give his superiors exactly what they wanted.
This was not an OPINION; this was an ACTION. Unfortunately, it cannot at the present time officially be considered a CRIMINAL action because John Yoo wrote the memo for the very entity responsible for prosecuting violations of the law — the U.S. Department of Justice. Under the Bush administration, the Justice Department has become merely an extension of the White House. It has refused to prosecute administration officials who ignored congressional subpoenas. It has even refused to consider prosecuting individuals who committed torture, based on the fact that these individuals had been told — by the Justice Department itself — they had the authority to do so. So we know that it will not prosecute the very person who wrote a memo authorizing these kinds of tortuous acts.
Moreover, we are now learning that nearly every top member of the Bush administration — from Vice President Cheney to Secretary Rumsfeld to the president himself — either participated in meetings to discuss torture or knew the meetings were occurring. So a prosecution of John Yoo would only serve to educate the public about the outrageous actions of the leaders of this country. This will certainly not occur under this administration.
John Yoo committed the most offensive and dangerous act possible in this country. He placed the interests of the President above the law. If our constitutional form of government — and our reputation in the world — survives the Bush administration, it will be in spite of John Yoo and his cohorts, not because of them.
If Berkeley Law School is going to keep John Yoo on its faculty, we at least hope that they find someone else to teach Constitutional Law.
American Freedom Campaign
P.S. — If you have not already sent an E-mail to Dean Edley and would like to do so, click on the following link:
The Torture Memos and Academic Freedom
Christopher Edley, Jr.
The Honorable William H. Orrick, Jr. Distinguished Chair and Dean
UC Berkeley Law School
While serving in the Department of Justice, Professor John Yoo wrote memoranda that officials used as the legal basis for policies concerning detention and interrogation techniques in our efforts to combat terrorism. Both the subject and his reasoning are controversial, leading the New York Times (editorial, April 4), the National Lawyers’ Guild, and hundreds of individuals from around the world to criticize or at least question Professor Yoo’s continuing employment at U.C. Berkeley Law School. As dean, but speaking only for myself, I offer the following explanation, although with no expectation that it will be completely satisfying to anyone.
Professor Yoo began teaching at Berkeley Law in 1993, received tenure in 1999, and then took a leave of absence to work in the Bush Administration. He returned in 2004, and remains a very successful teacher and prolific (though often controversial) scholar. Because this is a public university, he enjoys not only security of employment and academic freedom, but also First Amendment and Due Process rights.
It seems we do need regular reminders: These protections, while not absolute, are nearly so because they are essential to the excellence of American universities and the progress of ideas. Indeed, in Berkeley’s classrooms and courtyards our community argues about the legal and moral issues with the intensity and discipline these crucial issues deserve. Those who prefer to avoid these arguments – be they left or right or lazy – will not find Berkeley or any other truly great law school a wholly congenial place to study. For that we make no apology.
Did what Professor Yoo wrote while not at the University somehow place him beyond the pale of academic freedom today? Had this been merely some professor vigorously expounding controversial and even extreme views, we would be in a familiar drama with the usual stakes. Had that professor been on leave marching with Nazis in Skokie or advising communists during the McCarthy era, reasonable people would probably find that an easier case still. Here, additional things are obviously in play. Gravely so.
My sense is that the vast majority of legal academics with a view of the matter disagree with substantial portions of Professor Yoo’s analyses, including a great many of his colleagues at Berkeley. If, however, this strong consensus were enough to fire or sanction someone, then academic freedom would be meaningless.
There are important questions about the content of the Yoo memoranda, about tortured definitions of “torture”, about how he and his colleagues conceived their role as lawyers, and about whether and when the Commander in Chief is subject to domestic statutes and international law. We press our students to grapple with these matters, and in the legal literature Professor Yoo and his critics do battle. One can oppose and even condemn an idea, but I don’t believe that in a university we can fearfully refuse to look at it. That would not be the best way to educate, nor a promising way to seek deeper understanding in a world of continual, strange revolutions.
There is more, however. Having worked in the White House under two presidents, I am exceptionally sensitive to the complex, ineffable boundary between policymaking and law-declaring. I know that Professor Yoo continues to believe his legal reasoning was sound, but I do not know whether he believes that the Department of Defense and CIA made political or moral mistakes in the way they exercised the discretion his memoranda purported to find available to them within the law. As critical as I am of his analyses, no argument about what he did or didn’t facilitate, or about his special obligations as an attorney, makes his conduct morally equivalent to that of his nominal clients, Secretary Rumsfeld, et al., or comparable to the conduct of interrogators distant in time, rank and place. Yes, it does matter that Yoo was an adviser, but President Bush and his national security appointees were the deciders.
What troubles me substantively with the analyses in the memoranda is that they reduce the Rule of Law to the Reign of Politics. I believe there is much more to the separation of powers than the promise of ultimate remedies like the ballot box and impeachment, even in the case of a Commander in Chief during war. And I believe that the revolution in sensibilities after 9/11 demands greater, not reduced, vigilance for constitutional rights and safeguards. What of the argument made by so many critics that Professor Yoo was so wrong on these sensitive issues that it amounted to an ethical breach. It is true, I believe, that government lawyers have a larger, higher client than their political supervisors; there are circumstances when a fair reading of the law must – perhaps as an ethical matter? – provide a bulwark to political and bureaucratic discretion. And it shouldn’t require a private plaintiff and a Supreme Court ruling to make it so. Few professions require an oath at entry, but law does. Oaths must mean something.
Assuming one believes as I do that Professor Yoo offered bad ideas and even worse advice during his government service, that judgment alone would not warrant dismissal or even a potentially chilling inquiry. As a legal matter, the test here is the relevant excerpt from the “General University Policy Regarding Academic Appointees”, adopted for the 10-campus University of California by both the system-wide Academic Senate and the Board of Regents:
Types of unacceptable conduct: … Commission of a criminal act which has led to conviction in a court of law and which clearly demonstrates unfitness to continue as a member of the faculty. [Academic Personnel Manual sec. 015]
This very restrictive standard is binding on me as dean, but I will put aside that shield and state my independent and personal view of the matter. I believe the crucial questions in view of our university mission are these: Was there clear professional misconduct – that is, some breach of the professional ethics applicable to a government attorney – material to Professor Yoo’s academic position? Did the writing of the memoranda, and his related conduct, violate a criminal or comparable statute?
Absent very substantial evidence on these questions, no university worthy of distinction should even contemplate dismissing a faculty member. That standard has not been met.
April 10, 2008
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