John Yoo: December 2008 Archives

Are US Officials Guilty of War Crimes?
by Andy Worthington

Will the Bush administration be held accountable for war crimes? The answer ought to be yes, if the verdict of the Senate Armed Services Committee Inquiry into the Treatment of Detainees in US Custody is to mean anything. The bipartisan report, released on December 11 by senators Carl Levin and John McCain, concluded that the torture and abuse of prisoners was the direct result of policies authorized or implemented by senior officials within the current administration, including President George W. Bush, former Defense Secretary Donald Rumsfeld, and Vice President Dick Cheney's former legal counsel (and now chief of staff) David Addington.

Since the scandal of the abuse of prisoners at Abu Ghraib prison in Iraq broke in April 2004, over a dozen investigations have identified problems concerning the treatment of prisoners in Iraq, Afghanistan and Guantanamo, but until now no official report has looked up the chain of command to blame senior officials for authorizing torture and instigating abusive policies. The Bush administration has been able to maintain, as it did in the wake of the Abu Ghraib scandal, that any abuse was the result of the rogue activities of "a few bad apples."

This is now untenable. As the report states: "The abuse of detainees in US custody cannot simply be attributed to the actions of 'a few bad apples' acting on their own. The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees. Those efforts damaged our ability to collect accurate intelligence that could save lives, strengthened the hand of our enemies, and compromised our moral authority."

Though containing little new information, the report is damning in its revelation of how senior officials sought out and approved the reverse engineering of techniques taught in the US military's SERE schools (Survival, Evasion, Resistance, Escape) for use on prisoners captured in the "war on terror." These include "stripping detainees of their clothing, placing them in stress positions, putting hoods over their heads, disrupting their sleep, treating them like animals, subjecting them to loud music and flashing lights, and exposing them to extreme temperatures." In some circumstances, the measures also included waterboarding, a notorious torture technique which involves controlled drowning.

After noting that these techniques were taught to train personnel "to withstand interrogation techniques considered illegal under the Geneva Conventions," and that they are "based, in part, on Chinese Communist techniques used during the Korean war to elicit false confessions," the authors laid out a compelling timeline for the introduction of the techniques, beginning with a crucial memorandum issued by Bush on February 7, 2002. This stated that the protections of the Geneva Conventions, which the authors noted "would have afforded minimum standards for humane treatment," did not apply to prisoners seized in the "war on terror."

Having established Bush's role as the initial facilitator of abuse, the report then implicated those directly responsible for implementing torture, explaining how Pentagon general counsel William J. Haynes II began soliciting advice from the agency responsible for SERE techniques in December 2001, and how Addington, Justice Department legal adviser John Yoo, and White House counsel Alberto Gonzales attempted to redefine torture in the notorious "Torture Memo" of August 2002. The memo claimed that the pain endured "must be equivalent to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

The authors also noted how Rumsfeld approved the use of SERE techniques at Guantanamo in December 2002 (after Haynes had consulted with other senior officials), and explained how the techniques migrated to Afghanistan in January 2003, and were implemented by Lieutenant General Ricardo Sanchez, the commander of coalition forces in Iraq, in September 2003.

Even so, the report is not without its faults. The authors carefully refrained from ever using the words "torture" or "war crimes," which is a considerable semantic achievement, but one that does little to foster a belief that the officials involved will one day be held accountable for their crimes. They also, curiously, omitted all mention of Vice President Dick Cheney, and ignored the importance of the presidential order of November 2001, which authorized the capture and indefinite detention of "enemy combatants," even though Barton Gellman of The Washington Post has established that Cheney played a significant role in this and all the other crucial documents that led to the torture and abuse of detainees.

Responses in the US media have been mixed. Oddly, most major media outlets chose to focus solely on Rumsfeld's responsibility for implementing abusive techniques. More thoughtful commentators have questioned whether Barack Obama would pursue those responsible, noting that he will be unwilling to antagonize Republicans, whose support he needs to tackle the economic crisis, and that many Democrats in Congress knew about the administration's policies, and in some cases were involved in approving them. A recent article in The Nation noted that such complicity made "an unfettered review seem unlikely," but the article also noted, more hopefully: "A growing body of legal opinion holds that Obama will have a duty to investigate war crimes allegations and, if they are found to have merit, to prosecute the perpetrators."

As of December 17, those concerned with pursuing Bush administration officials for war crimes can at least be assured that the perpetrators now include Cheney. In an interview with ABC News, the vice president stuck to a now-discredited script, declaring "we don't do torture, we never have," but admitted for the first time that he knew about the use of waterboarding on a handful of "high-value detainees," and that he considered its use in their cases "appropriate."

Only time will tell if Cheney's admission will be regarded as a stalwart defense of national security, or as the last defiant gesture of a war criminal.

by Jonathan Shaw, Harvard Magazine, January-February 2009

Huzaifa Parhat, a fruit peddler, has been imprisoned at Guantánamo Bay Detention Center for the last seven years. He is not a terrorist. He's a mistake, a victim of the war against al Qaeda. An interrogator first told him that the military knew he was not a threat to the United States in 2002. Parhat hoped he would soon be free, reunited with his wife and son in China. Again, in 2003, his captors told him he was innocent. Parhat and 16 other Uighurs, a Muslim ethnic minority group, were living in a camp west of the Chinese border in Afghanistan when the U.S. bombing campaign against the Taliban destroyed the village where they were staying. They fled to Pakistan, but were picked up by bounty hunters to whom the U.S. government had offered $5,000 a head for al Qaeda fighters.

The Uighurs were officially cleared for release in 2004, but they remain at Guantánamo. They cannot be repatriated to China, because they might be tortured, and no other country will take them. The U.S. government does not want to allow them into the United States for fear of setting a precedent that might open the door for detainees it still considers dangerous. In 2006, after again being told that they were innocent, and becoming desperate, some of the Uighurs began mouthing off to their captors. They were sent for a time to Camp Six, a $30-million "supermax" prison for holding al Qaeda suspects in isolated cells.

In the tomb-like confines of this concrete prison, some of them began to crack up, says P. Sabin Willett '79, J.D. '83, a Boston-based attorney with Bingham McCutchen, the firm that has represented the Uighurs pro bono since 2005. "The Department of Defense has studied what happens to human beings when they are left alone in spaces like this for a long time and it is grim," Willett notes. "The North Koreans did this to our airmen in the 1950s. The U.S. ambassador to the United Nations went to the floor of the General Assembly and denounced the practice as a step back to the jungle."

Continue reading The War and the Writ: Habeus Corpus and Security in an Age of Terrorism.

UC Berkeley continues to tolerate torture and massive covert domestic-spying as John Yoo remains employed as a Professor of Law at Boalt Hall. UC Berkeley legitimizes John Yoo's Torture Memos and rationalization of secret surveillance with polite academic discourse and arguments of academic freedom, the First Amendment, and Due Process. UC Berkeley continues to do nothing to repudiate John Yoo's deliberate thwarting of professional responsibility. Berkeley Law and Chapman University School of Law provide safe harbor for John Yoo to be shielded from investigation, dismissal, and prosecution for war crimes and crimes against humanity.

John Yoo did not take orders from the top to legalize and implement a domestic spying program and state torture--John Yoo is the principal. The secret collection and data-mining program and secret surveillance were instigated and implemented by John Yoo, who argued that the president's constitutional powers as commander in chief trumped the Foreign Intelligence Surveillance Act (FISA) and Common Article 3 of the Geneva Conventions.

As the legal profession and academia accept John Yoo as providing "the other side of the debate," they neglect confronting reality and the dire consequences for the future of legality. The 'Ivory Tower' and the American Bar Association send the message that illegality can be sanctioned and protected no matter how gruesome and long-lasting the consequences. UC Berkeley has sent the message that tenure outlasts rampant illegal, immoral, and illegitimate decisions to be carried out in creating new standards in which surveillance and torture are viewed as normative. UC Berkeley stands for strengthening draconian laws for empire and shielding John Yoo from accountability and repudiation.

The audio below was reported on the Pacifica radio affiliate KPFA in Berkeley on the 12-9-08 evening news report on the 12-8-08 Berkeley City Council discussion and resolution on War Crimes prosecution against John Yoo initiated by the Berkeley City Council's Peace and Justice Commission. There are some clips of Councilman Max Anderson's passionate and eloquent speech.  click here to listen 3.8meg, 4min10 sec

John Yoo wrote the legal rationale that became the basis for state sanctioned torture.

The immediate source of deliberate mis-governance began with John Yoo's radical, and doubtfully constitutional, interpretation of the "unitary executive," propounded when he served in the Department of Justice Office of Special Counsel-the office that prepares legal opinions for the White House, in this case for the disposition of suspected terrorists captured after 9/11. Yoo's interpretation of an all-powerful executive was carried over the course of two presidential terms to its illogical, baseless unconstitutional extremes.

Having successfully completed that task, he returned to UC Berkeley to teach students about the law, its place in a global society, and the role of the lawyer in constitutional structure. Is John Yoo teaching future lawyers to act as he has acted? To put the needs of their client above the demands of the law? To do whatever is necessary to make sure that their client gets their way? And is that what Berkeley Law wants its faculty to teach the future power elite? Are those the values that people in power for the future of legality should be taught? To usurp professional responsibility and legal obligations? Are there no limits according to UC Berkeley, no legal methods which are out of bounds? Is Ethics no part of the curriculum taught at Berkeley Law?

See Mis-governance: Cleaning Up After the Bush Administration and Berkeley Defends John Yoo With Nonsense.

John Yoo awarded Fletcher Jones Distinguished Visiting Professorship

John Yoo
2008-9 Fletcher Jones Distinguished Visiting Professor of Law
Chapman University School of Law
One University Drive, Orange, California  92866

Think of all that orange: Orange, the color of the jumpsuits donned by anti-torture activists demonstrating within and around John Yoo's Boalt Hall campus refuge, the attire of the victims Yoo's "legal" memos condemned to lives of torture and despair. Orange, the color of the ribbons pinned to the everyday attire of concerned Berkeley residents and students, signifying their condemnation of the horrible crimes of illegal detention and torture being committed in their names, while the author of those crimes strolls freely among them on their streets and within their UC campus. Orange, the color of the billboard prominently displayed in downtown Berkeley with the words, "Torture + Silence = Complicity," that invited residents and visitors alike to reflect on their responsibility in these matters and act [1]. And now, Orange, CA, the location of John Yoo's latest professional venture -- distinguished visiting Professor of Law, Chapman University.

What does this new appointment mean? For John Yoo, perhaps it means another feather in his professional cap, peer recognition, and salary enhancement. It helps further legitimize the myth of him as a successful and worthwhile member of the community. For Chapman University School of Law, it means added prestige, enhanced school ranking, and a ballooning student applicant pool [2]. For UC Berkeley, we might venture to say they gain from the added "prestige" this appointment affords their tenured law professor.

But what does John Yoo's visiting professorship mean for the students at Chapman University School of Law? The answer is the same as that for the students of Boalt Law: the legitimacy of exposing students of law to the instruction of a professor whose legal and scholarly advice has resulted in such disastrous national policy and the suffering and death of untold torture victims has to be seriously challenged [3].

There's no word that Yoo's position as Professor of Law at Boalt Hall has changed with his appointment as visiting professor at Chapman University School of Law. So what does this mean for the City of Berkeley? Might Yoo's appointment at Chapman be considered an "outside matter," much as his guilt or innocence for his acknowledged war crimes and crimes against humanity might be considered an "outside" national matter [4]? Most certainly not.

On December 8^th the Berkeley City Council will have the opportunity to take up the matter of John Yoo during a public hearing on a resolution submitted by the Berkeley Peace and Justice Commission recommending the firing and disbarment of John Yoo and his prosecution for war crimes [5]. It should be very clear by now that if the City of Berkeley does not act decisively to hold John Yoo to account for his crimes, not only will it allow Yoo continued use of his "privileged" position in Berkeley to move into other venues within academia, but it will open the door for other criminal elements within the Bush administration to follow suit.

[1]  Peace Activists Use Billboard to Call for Firing of UC Law Professor, Judith Scherr, August 07, 2008, http://www.berkeleydailyplanet.com/issue/2008-08-07/article/30768?headline=Peace-Activists-Use-Billboard-to-Call-for-Firing-of-UC-Law-Professor

[2]  Chapman Ups The Reputation Ante With Some Big Name Faculty, Petra Pasternak, October 07, 2008, http://theshark.typepad.com/weblog/2008/10/chapman-ups-the.html

[3]  Blame Berkeley, Phillip Carter, April 14, 2008, http://www.slate.com/blogs/blogs/convictions/archive/2008/04/14/blame-berkeley.aspx

[4]  White Paper On The Law Of Torture And Holding Accountable Those Who Are Complicit In Approving Torture Of Persons In U.S. Custody, National Lawyers Guild, http://www.nlg.org/news/statements/White%20Paper%20-%20Yoo%20hearing.doc 

[5]  Berkeley City Council to Consider Resolution Urging Prosecution of John Yoo, Linda Rigas, December 4, 2008, http://www.afterdowningstreet.org/node/38067

 

Support the Peace and Justice Commission Recommendation that the Berkeley City Council adopt the following resolution:

 1) Contact Carlos Villareal, Executive Director of the San Francisco Chapter of the National Lawyers Guild at carlos@nlgsf.org and communicate that the City of Berkeley wishes to be listed amongst the signers of the Call to Investigate Professor John Yoo, which is a letter to University of California Chancellor Robert Birgeneau; and

2) The City should state that no student of U.C. Berkeley should be required to choose between taking a course with Professor John Yoo or waiting another semester to take and complete a required course. If the Law School is to permit Professor Yoo to teach non-elective courses, the school should make available to students the opportunity to take these non-elective courses with another professor during the same semester so as to assure students are not sanctioned or delayed in their fulfillment of non-elective courses due to their distaste for taking a class with someone who wrote memoranda that authorized the use of pain, violence and degrading treatment as a method of treatment of persons held in U.S. custody; and

3) Ask the U.S. Attorney for Northern California to bring charges of war crimes against John Yoo, now teaching in the City of Berkeley at U.C. Berkeley School of Law; and

4) Send another letter in February, 2009 to the then-Attorney General of the United States asking him/her to bring charges of war crimes against John Yoo, if such charges have not yet been brought; and

5) That a letter be sent to the President of the University of California, the Chancellor of U.C. Berkeley and the Dean of U.C. Berkeley School of Law incorporating the language of the above recommendations and advising them of the City's position.

Public Hearing Monday, December 8

2134 Martin Luther King, Jr. Way

City Council Meetings begin at 7:00 PM

Before that date, write and call Berkeley City Council Members to show your support for recommended actions against John Yoo, Legal Advisor to the Bush administration and author of memos giving the green light for torture:

Mayor	Tom Bates	mayor@CityofBerkeley.info	(510) 981-7100
District 1	Linda Maio	lmaio@CityofBerkeley.info	(510) 981-7110
District 2	Darryl Moore	dmoore@CityofBerkeley.info	(510) 981-7120
District 3	Max Anderson	manderson@CityofBerkeley.info	(510) 981-7130
District 4	Jesse Arreguin	jarreguin@CityofBerkeley.info
District 5	Laurie Capitelli	lcapitelli@CityofBerkeley.info	(510) 981-7150
District 6	Susan Wengraf	swengraf@CityofBerkeley.info
District 7	Kriss Worthington	kworthington@CityofBerkeley.info	(510) 981-7170
District 8	Gordon Wozniak	gwozniak@CityofBerkeley.info	(510) 981-7180

 

The Mayor and Council Members may be reached by mail at: 2180 Milvia Street, Berkeley, 94704.

On October 2nd, 2008 at Columbia Law School, Attorney General Mukasey argued in favor of the government's lawyers and the decisions that were enacted and furthered by the Office of Legal Counsel after September 11th, 2001. Mukasey heeded the audience with caution-- "caution against questioning the lawyers' good faith" and "caution against second guessing the Justice Department's decisions in hindsight, beyond the heat of crisis." (Steven G. Calabresi also makes a good faith argument here.)

According to Mukasey and Calabresi, people of consciousness should ignore the illegitimate use of torture, and the legal profession should pass on any form of accountability as, "Questions national security lawyers confront are "as complex and consequential as they come. Lives and the way we live them may hang in the balance," he said. "Political leaders and the public must not forget what was asked of those lawyers seven years ago."

What we asked of lawyers seven years ago and what we ask of lawyers today is adherence to and compliance with domestic and international law. The declaration of a state of national emergency does not warrant anything less than this basic standard. John Yoo's actions cannot be overlooked merely  they dealing with particularly potent questions. The issue of torture does not rise from the sticky political process or how prosecution might destroy any morale in government by the "average" person.

The gravamen of torture is to end torture, to end the mass murder, abuse, and cruel and unusual punishment of individuals who have not been charged, whose livelihoods are in jeopardy as legal limbo lounge persists.

The legalization of torture 'shocks the conscience' of the world. The Office of Legal Counsel does not immunize John Yoo from taking responsibility for legalizing torture pursuant only to the policies that needed to be enacted by the Bush Regime to legitimate the illegitimate occupation of Iraq. John Yoo cites no legal authority to reflect domestic and international laws against torture. John Yoo's authorizations of torture were made in violation of these laws, yet the legal profession stands aside with the line that John Yoo has not acted with a culpable state of mind.

Mukasey went on to question, "where are the legal lines that will be drawn in this new and very different conflict, and as a matter of policy how close to those legal lines we should go, and whether the lines can and should be redrawn."

The legal line against torture has already been crossed and shattered in our names. There is no reason to give the Office of Legal Counsel a "golden shield" on legalizing torture. There is no evidence that points to John Yoo's good faith reasoning. In fact, as Scott Horton points out in "Golden Shield or Achilles Heel?": the evidence points to "a joint criminal enterprise, the object of which was to enable torture--the memos actually were intended to and did further the scheme. They are evidence of a crime and of criminal intent. The core of that criminal enterprise was formed and much of it was carried out inside the Justice Department."