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Yoo Unrepentant (and Deflecting Responsibility)

By Jack M. Balkin

In the Wall Street Journal today, John Yoo chastises President Obama for his orders to close Gitmo and halt illegal interrogation techniques. Yoo calls Obama "naïve" for insisting in his inaugural address that we must not and need not sacrifice our ideals for security.

The prominent conservative Charles Fried, it bears noting, articulated the same ?naïve? position a week before the inauguration:

Some argue that torture is justified if our survival is threatened, but even apart from the elasticity of this justification, it is flawed because it depends on an equivocation. Our physical survival is not what is of overriding moral importance (people give up their lives all the time for some higher value) but our survival as decent human beings acting for a decent society. And we cannot authorize indecency without jeopardizing our survival as a decent society.

Fried condemned high level Bush Administration officials ?who allowed Americans to engage in torture and cruel, inhumane and degrading treatment of those in our custody.? He made these comments, by the way, in the course of defending these officials against calls for their prosecution.

Undeterred, Yoo still defiantly insists that torture in the service of national security is fine:

What is needed are the tools to gain vital intelligence, which is why, under President George W. Bush, the CIA could hold and interrogate high-value al Qaeda leaders. On the advice of his intelligence advisers, the president could have authorized coercive interrogation methods like those used by Israel and Great Britain in their antiterrorism campaigns. (He could even authorize waterboarding, which he did three times in the years after 9/11.)

Rather than detail the flaws in Yoo?s position, exposed many times on this blog, I will instead focus on the words italicized above, for they subtly but clearly point responsibility away from Yoo.

As he no doubt knows, the Senate Committee Report that investigated our illegal treatment of prisoners places responsibility for events squarely on legal advice prepared by Yoo (and Bybee) that ?distorted the meaning and intent of anti-torture laws.?

Indeed, stalwart defenders of the Bush Administration, including the Wall Street Journal?s editorial board, repeatedly point to the legal opinions: ?Bush Administration lawyers approved the legality of certain interrogation techniques after studying U.S. law and its applicability to the Geneva Conventions.?

?In any event,? the editors continue, ?the legal standard for any possible prosecution into torture allegations would include mens rea -- whether, say, a CIA interrogator understood, i.e., possessed the "guilty mind," that his actions constituted a crime.? As these arguments suggest, the Journal?s position is that CIA interrogators cannot be prosecuted because they relied in good faith upon the legal opinions (assuming that one can rely in ?good faith? on legal opinions which say that waterboarding is not ?toture?).

Even Alberto Gonzales (self-servingly) distances himself from the pivotal torture memos, as the WSJ reported: ?Mr. Gonzales said his role as White House counsel at the time was one among several administration lawyers who debated the opinions, but that in the end it was the Justice Department's call. John Yoo, the then-Justice official who had been assigned to draft the memos, had strong feelings and no one could have pressured him to write the memos a certain way, Mr. Gonzales said.?

Thus critics as well as defenders of the Bush Administration agree that Yoo?s (and Bybee?s) legal opinions played the pivotal role in providing legal authority for the ?coercive? interrogations.

In the above paragraph Yoo appears to make a crucially different claim: ?On the advice of his intelligence advisors, the president could have authorized coercive interrogation methods?? [Note: Yoo's "president could have" phrasing ambiguously shifts between Bush and Obama, but the specific reference to the authorization of waterboarding clearly refers to Bush, suggesting that this is Yoo's characterization of what transpired.]

Every other account of events indicates that intelligence advisors sought approval to apply coercive techniques, and Yoo?s (and Bybee?s) legal memos provided the legal cover they desired.

Full post as published by Balkinization on January 29, 2009 (boomark / email).