April 03, 2008

Berkeley's Professor of Torture

I've never read any of the Anne Rice novels, or even much of Stephen King, but I can say I've read one horror classic cover to cover: Boalt Hall law professor John Yoo's 81 page memorandum on torture written while he was with the Office of Legal Counsel in March, 2003. I will not undertake any sort of in-depth analysis of this repugnant piece of rationalization; the legal heavyweights at Balkinization.com, linked to the right, deconstruct it brick by slimy brick. Everything about the memo is wrong. It is wrong in its most basic premises (the War Crimes Act and the Convention Against Torture do not apply to "stateless actors" such as al-Qaeda, for example). It's morally wrong. It's ethically wrong. It's disgusting. It's beneath contempt. It's a piece of shitty scholarship.

The Regents of the University of California keep this guy Yoo on the payroll. Well, I was in or near the Berkeley campus during the great controversies over Herbert Marcuse and Angela Davis. In their situations, the case of academic freedom was framed in terms of the right of faculty members to espouse frankly Marxist or radical theories or tactics. So the issue is now framed the other way: shouldn't the Academic Senate go to bat for a guy who looks for ways to introduce the ideas of the Spanish Inquisition into a modern American administration? Who argues for the creation of a presidential dictatorship in a "time of war?" Who argues that in a time of (perpetual) war, the Fourth Amendment does not stop U.S. soldiers from entering American households and tossing the place? I guess they should. John Yoo's a big name now. He belongs in that starting lineup with the Four Lawyers of the Apocalypse, alongside Gonzales, Jay Bybee and David Addington. Yoo was probably the star because it was he who wrote the brief, this 81-page instruction manual on how to beat a federal rap for "maiming" by pouring acid on the correct part of the prisoner's body. That's just barely a mischaracterization. That's what the memo is about. How can the CIA and the military get around all these inconvenient laws against war crimes and torture? Where should you do it? Just how far can you push it? If you cause severe pain, if the prisoner screams and cries and begs for mercy (like al-Qahtani at Guantanamo) but he doesn't die and no "organ fails;" and even if he goes insane, what if the defense can prove that the torturer lacked "specific intent" to bring about insanity? It's all there in Yoo's memo. How to torture and get away with it.

Jack Balkin calls the memo and its conclusions "outrageous." Many other legal scholars have much stronger words for this piece of dreck. A lot of Yoo's memo went by the boards when the Supreme Court took up the issue of Geneva Convention protections for war-on-terror detainees. As a result, Congress was asked to provide (and of course complied) a pair of exonerations in the Detainee Treatment Act and the Military Commissions Act for U.S. personnel who thought they were torturing prisoners the way the President and his lawyer told them they could. That must have been kind of embarrassing for Yoo. Most lawyers who commit malpractice pay money damages; they don't require an Act of Congress to clean it up.

Not that such a consideration bothers anyone at Berkeley. Yoo's a celebrity; now that his March, 2003 Memo has been declassified, all American citizens (and the world community) can see his work in detail. Maybe his star has risen; maybe the Academic Senate feels constrained because they sense any action against Yoo would be seen as the result of professional envy. Wow, they think; Yoo was in on the ground floor of Abu Ghraib and Guantanamo, and all that stuff that went on in the CIA's black sites. How cool to be that influential!

I remember a remark from George W. Bush when he was asked what he would do when he gained access to the Oval Office. "Give it a good cleaning," he said, in a prissy put-down of Bill Clinton's shenanigans. I think after Bush that won't be good enough. No amount of Comet or Lemon Pledge or carpet cleaner is going to fix what this guy has done to the office. They should declare it a toxic site under the Superfund law, tear it down and build a new one.

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