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Guess Who Wrote This, and About What President:
Here is the quote:
President ____ exercised the powers of the imperial presidency to the utmost in the area in which those powers are already at their height — in our dealings with foreign nations. Unfortunately, the record of the administration has not been a happy one, in light of its costs to the Constitution and the American legal system. On a series of different international relations matters, such as war, international institutions, and treaties, President ____ has accelerated the disturbing trends in foreign policy that undermine notions of democratic accountability and respect for the rule of law.
Who do you think wrote the passage above, and who was the President?
.
jota:
Looks like its time to update Godwin's law with a corrolary. How long can conservatives and libertarians conduct some form of dialogue without chiming in with a conversatio ending "but Clinton did it."

Anyway, if what Yoo claims is true, then why complain? Isn't that the sort of power Yoo advocates for his favored executive(s)?
2.12.2006 2:25pm
Markusha:
Wow,

Thanks for this quote, Orin. I thought Yoo was a smart lawyer who was mistaken about the extent of Presidential power, but I didn't know what a hypocrite he is. I mean, to complain about Clinton "undermining notions of democratic accountability" while insisting that Bush has virtually unlimited powers and zero accountability is a height of professional disgrace. Shame on Yoo.
2.12.2006 2:29pm
Defending the Indefensible:
So Yoo is unmasked as a narrow partisan. I actually agree with his characterization of Clinton. I happen to think the same criticism is equally or moreso applicable to Bush.
2.12.2006 2:46pm
Freder Frederson (mail):
Yoo is a war criminal who I hope one day will have to answer for his crimes. That he is a law professor at a major university shows the sorry state of morality in the legal profession and legal education.
2.12.2006 2:50pm
Haha:

Shame on Yoo.




Nice one.
2.12.2006 2:52pm
BU2L (mail):
Of all the things that could accurately describe Clinton, "power-hungry imperialist" is not one of them. It's interesting to note however, how patently false Yoo's conclusion seems in retrospect. I wonder how much of the criticism leveled at Bush today will be more universally accepted to be meaningless partisan vitriol, in 5-10 years.
2.12.2006 3:00pm
Abdul (mail):
I was going to say Noam Chomsky wrote it, and the blanks were left in the original.
2.12.2006 3:06pm
Kovarsky (mail):
Orin,

So naive you are! Pre-9/11 understanding of the meaning of the constitution that is!

I can't believe in that movie the inter-galactic senate granted emporer palpatine infinte war power....
2.12.2006 3:06pm
Taeyoung J. (mail):
Just out of curiosity, what is he referring to here in particular? My guess is that it's Clinton's use of "executive agreements" to circumvent the obligation of presenting treaties to the Senate for ratification, but I don't really know anything about this area of law.
2.12.2006 3:13pm
Kovarsky (mail):
"emperor," jeez, my spelling needs work. it's all because this blog stuff doesn't have autocorrect yet.
2.12.2006 3:13pm
A. Zarkov (mail):
How is Yoo a war criminal? This term is flung around so much it's losing any substantive meaning like the word "fascist." He might be a hypocrite, he might be wrong in his legal reasoning, but a war criminal?
2.12.2006 3:14pm
Columbia Undergrad (mail):
It's sad for all that the way politics works right now with the tight-knit relationships between the WH and the members of their parties in Congress, that leads Congress to massive expansions of presidential power by presidents of both parties.

The courts have not been of much help either.
2.12.2006 3:16pm
Taeyoung J. (mail):
Also, for the people above, cavilling about Yoo's conclusion here, "imperial presidency" is not code for "imperialist president." Nor are all powers of the presidency identical. It's quite possible to consider certain powers as more expansive than others -- one is not obligated to consider all powers as equally constrained or equally broad. Indeed, the law often commands such. Again, I'm not an expert in this area of law, but the conclusion here is provided entirely without context. Without that context, I think it's a bit soon to accuse Yoo of hypocrisy.
2.12.2006 3:16pm
Haha:
Kovarsky,

Would your really feel comfortable enough to entrust VC with that much unchecked power? The imperial blogger is a scary thing!
2.12.2006 3:17pm
colts41 (mail):
Yoo said:

"President ____ [Clinton] has accelerated the disturbing trends in *foreign policy* that undermine notions of democratic accountability and respect for the rule of law." (My emphasis.)

Yoo may claim he's on solid ground because he was referring only to "foreign policy" -- not national, as in *domestic*, security.

Really, how can anyone argue with Yoo, or Bush, or Cheney, when the issue is defending the homeland, which has nothing to do with Bosnia or the U.N. or even federal statutory law.

How can anyone argue?
2.12.2006 3:17pm
Freder Frederson (mail):
How is Yoo a war criminal?

He specifically wrote legal opinions to justify the torture and illegal detention of enemy combatants in violation of the U.S. Constitution, U.S. law (both civil and under the UCMJ), U.S. treaty obligations (including the Geneva Conventions and the International Convention Against Torture and Other Cruel, Inhuman and Degrading Punishment or Treatment) and general international law. As such he is partly responsible--and I would argue criminally liable-- for all the various war crimes that this administration has committed since the war on terror has started.
2.12.2006 3:23pm
Bruce:
The king can do no wrong, eh colts41?

I figured the quote was about Clinton, given Orin's setup, but the fact that Yoo wrote it surprised me.
2.12.2006 3:25pm
Ross Levatter (mail):
I haven't looked yet as to who wrote it, but I think the answer as to which President is "Every one (at least since the second Cleveland administration)."
2.12.2006 3:26pm
Bruce:
Using terms like "war criminal" so loosely degrades their meaning; as it does when critics of the war are called "traitors." It's silly. And I'm no fan of Yoo's torture memos.
2.12.2006 3:27pm
dk35 (mail):
David Bernstein's all too frequent message to Volokh Conspiracy readers:

You Can't Comment on that!...Because I won't let you.
2.12.2006 3:28pm
Freder Frederson (mail):
Really, how can anyone argue with Yoo, or Bush, or Cheney, when the issue is defending the homeland, which has nothing to do with Bosnia or the U.N. or even federal statutory law.

Because they are not above the law and are bound to follow it. Especially Cheney, he doesn't even have any power other than to break ties in the Senate. He certainly didn't have the authority to order the shoot-down of flight 93 on September 11. Show me in the constitution where he is deputy Commander in Chief.
2.12.2006 3:28pm
Rodger Lodger (mail):
Not being blessed with a particularly high IQ (at least back in the days when IQs were not politically incorrect), I stand in need of an explanation of the relevance of Yoo's apparent inconsistency regarding desirable reach of presidential power.
2.12.2006 3:34pm
Mary Katherine Day-Petrano (mail):
The President ... Yoo, 2016.

The writer ... former AG Gonzales (only intelligent one who managed to escape the 2007 impeachment proceedings of George W. Bush (unlawful spying on Republican Congress, other Presidential contenders, Federal Judges and their families, and the NSA itself) and Richard Cheney (unlawful Phlame leaks)).
2.12.2006 3:37pm
Freder Frederson (mail):
Using terms like "war criminal" so loosely degrades their meaning

So how would you define a war criminal? Someone who provides the legal justification for torture is just as guilty of torture as the person who orders it or carries it out. A doctor who attends a torture is criminally liable and professionally bound to stop it (as is a soldier). Why should a lawyer who says "Torture is okay because your inherent power as C in C means you are not bound by the strictures of civilization" not be criminally liable for his despicable, immoral, sadistic, and legally unsound opinion.

I don't want to be the first to introduce Godwin's Law, but I do think it is appropriate in this instance. Didn't we hold the bureaucrats and lawyers in Nazi Germany who wrote and implemented the Nuremburg Laws liable for their actions?
2.12.2006 3:39pm
Kovarsky (mail):
I don't think a lawyer can really be a war criminal for writing a legal opinion. I certainly wouldn't want to hold lawyers accountable in ways like this. I agree with Bruce wholeheartedly on this point. There's nothing more toxic to our contemporary debate than when someone proposing something other than the administration's line is accused of giving quarter to the enemy. As a "meta" point - this is the first time I can remember where the very act of debating something has been considered by some to be seditious.

But come on with the "this isn't hypocritical" line of argumentation - let's not focus on the "foreign relations" thing - the Yoo passage clearly reveals a concern for the rule of law, clearly thinks the rule of law is something to be protected from executive encroachment, and ... o, what's the point anymore. Is there anything I could possibly say that would change someone's mind on this?
2.12.2006 3:40pm
Kovarsky (mail):
Rodger,

Yoo's work on the subject is the legal backbone of the administration's theory of executive power.

As an aside, I love it when the double negative of a term ("not politically incorrect") acquires a meaning that differs from a positive statement of the proposition. Not surprisingly, I first discovered the phenomenon in dealing with legal opinions that, when evaluating a standard of review, require you to write "not inconsistent with," rather than "consistent with," because the two somehow mean different things.
2.12.2006 3:45pm
Ben Coates (mail):
Freder:

That's not a very compelling example. if the worst thing that happens when a vice-president oversteps his power is an obviously correct decision during a panic with an apparent leadership vacuum, I'm all for it.
2.12.2006 3:49pm
Federal Dog:
Writing an objective memorandum of law cannot constitute a "war crime." No objective memorandum of law implies that its author personally advocates its findings. It's simply the author's reasoned prediction of how a court will rule on a identified legal issues given specific facts and governing legal principles. Don't people take a first year skills course in law school anymore?
2.12.2006 3:51pm
Freder Frederson (mail):
I don't think a lawyer can really be a war criminal for writing a legal opinion.

Of course they can. War crimes and crimes against humanity are a very special class of crimes where there is very strict liability for all those involved. Torture and other crimes against humanity are not something that lawyers can just wash their hands after the fact by saying, "oh, I was just writing a hypothetical opinion for my boss, I never thought he would actually take it seriously and actually torture people just because I said he could".
2.12.2006 3:54pm
gr (www):

Writing an objective memorandum of law cannot constitute a "war crime."


I think the claim is that it was more of a subjective memorandum, not an objective one.
2.12.2006 3:56pm
Hank:
Federal Dog: Writing a memorandum of law may not constitute a war crime, but it seems highly unlikely that Yoo's memorandum was objective or a reasoned prediction of how a court would rule. If it were, then he would not be qualified to be a law professor. Almost certainly, it was written in bad faith to justify war crimes, and, if that doesn't make Woo a war criminal, it also doesn't make him a decent human being.
2.12.2006 4:03pm
Freder Frederson (mail):
Writing an objective memorandum of law cannot constitute a "war crime."

Again, nonsense. Considering that many of the war crimes trials have been carried out against people who had the full weight of their national law behind them when they committed their crimes, this argument doesn't hold much water at all. And remember, Yoo's memo specifically stated that the President could abrogate Federal laws and international treaty obligations in his pursuit of AlQaeda. The arguments made were so absurd, that I question whether the memo even fit the definition of "objective" in the first place. Not to mention, that by advocating torture he was advocating policies that shock the conscience and have never been permitted in the jurisprudence of this country in its entire history.
2.12.2006 4:05pm
guest91782:
I'm pretty sure lawyers and judges were tried at Nueremberg.
2.12.2006 4:12pm
Federal Dog:
gr--


Even if the memo was persuasive in nature, that still doesn't mean it was an expression of Yoo's personal opinion. This wasn't an article or opinion piece: It was a memorandum of law. It is always irrational to assume that any attorney personally advocates the results of legal memos he drafts: He's either trying to predict or influence court behavior on behalf of the party he represents.


If the memo was persuasive, with what court was it filed? I had understood that it was an internal, objective memo drafted for administration use alone.
2.12.2006 4:12pm
Freder Frederson (mail):
if the worst thing that happens when a vice-president oversteps his power is an obviously correct decision during a panic with an apparent leadership vacuum, I'm all for it.

Well, it isn't. But it does show how inept this administration is that they had someone with absolutely no constitutional or legal authority to do so ordering the shoot-down of planes while the president flew around the country trying to figure out what to do.

It reminded me of Al Haig saying "I'm in charge" after Reagan got shot. But at least then, the president was at least really incapacitated.
2.12.2006 4:13pm
Ben Coates (mail):
The winners write the history books, and they hold the war crimes trials, too. If Yoo is brought to trial for his actions, he will have easily met the only standard for being a war criminal there is: he was on the losing side.
2.12.2006 4:14pm
Another:
Who said this one?


I think if it is clearly understood that the President has the constitutional power to prevent the betrayal of national security secrets, as I understand he does, and that is well understood by the American people, and an episode like that is seen in that context, there shouldn't be any problem.
2.12.2006 4:15pm
Hank:
Federal Dog: It doesn't matter whether the memo represented Yoo's personal opinion. What matters is that it attempted to justify torture in order to for torture to continue. It would be different if Bush were on trial for war crimes and Yoo were his defense attorney -- then he could make whatever arguments might get his client off. But to write a memo to promote torture is beyond the pale, whether or not it is a war crime.
2.12.2006 4:20pm
Mary Katherine Day-Petrano (mail):
Speaking of war crimes ... would this qualify, seeing as the international las of war were triggered by the AUMF and the President's war on terror?



(Good thing Justice Scalia didn't go on THIS hunting trip...)
2.12.2006 4:21pm
Mary Katherine Day-Petrano (mail):
The link did not post. The hunting trip I am referring to is at

Cheney Hunting Trip
2.12.2006 4:23pm
Mary Katherine Day-Petrano (mail):
"las"=laws
2.12.2006 4:25pm
Federal Dog:
Hank -- You and others fail to understand what a legal memorandum is. Further, the media, hoping to damage Bush, is eager to exploit the lack of understanding to ignite anti-administration hysteria.
2.12.2006 4:28pm
Hank:
Federal Dog: "You and others fail to understand what a legal memorandum is." That is not helpful. Would you take the trouble to tell us, and state whether you believe that there is any limit beyond which a lawyer may not go in assisting a client to commit a crime? For that's what Yoo was doing, in that his could not have really believed that his advice was objective.
2.12.2006 4:33pm
Freder Frederson (mail):
Further, the media, hoping to damage Bush, is eager to exploit the lack of understanding to ignite anti-administration hysteria.

Well no, the media lets Bush get away with way too much. Instead of letting Bush glibly say "we don't torture", someone would ask him: "how exactly do you define torture". I'm sure there are a lot of things the Bush administration doesn't consider torture that most of the rest of the world does. If the media is really trying to "ignite anti-administration hysteria", they are doing a piss-poor job of it.
2.12.2006 4:36pm
Donald Meaker (mail):
The Geneva Convention defines legal combatants, and provides protections for them. It also provides no legal protections for illegal combatants.

Applying the term of art "War Criminal" to someone who points out the above is as ludicrous as would be the application of the term "War Criminal" to those who negotiated the terms of the Geneva Convention, and to the politicians who ratified it.

Hyperbole is not an aid to clear thinking, is it?
2.12.2006 4:44pm
Federal Dog:
Hank, Drafting an evaluation of any legal issue in the light of facts and law is not assisting a client to commit a crime. There is nothing criminal or unethical about honestly answering questions about given law, or about honestly predicting how courts will act on that law. Whatever problem you have personally with Yoo, it finds no rational basis in the fact that the man answered specific legal questions put to him by a client: He didn't enact the law in question, and he has no legislative control over it. He is simply predicting what that law means in practical terms. There's nothing criminal, unethical, or questionable about that.


If you need to string someone up for war crimes, go after the folks who enacted the law to which you object. Why rant about some guy answering legal questions asked by a client?
2.12.2006 4:52pm
Donald Meaker (mail):
I was just thinking. If being on the losing side was enough to make a war criminal, then someone should tell me of the trial for Robert E. Lee, Jefferson Davis. Of course, after the worst war fought by the US, the war crimes trials were limited.

In the past, the US has conducted War Crime trials, and was, in my estimation, rather limited in its application of the charge "War Crimes". Even after the horrendous events of WWII, with millions murdered, frequent atrocities with prisoners of war at Malmedy shot or POWs captured by the Japanese beheaded for being too sick to work, with Shinto priests traveling through out the war zone teaching the proper way to behead prisoners of war, the number of war crime trials was very finite, and perhaps too finite.
2.12.2006 4:54pm
SLS 1L:
Orin - what's the point you're trying to get across with this quote? I'm confused. Is the implicit argument supposed to be the transparently invalid:

John Yoo said that Clinton was an imperial President.
Clinton was not an imperial President.
Therefore, George Bush is not an imperial President.

I don't want to accuse you of making that argument because you're generally more reasonable than that in my experience, but this is a disturbingly common argument form and I'm having trouble figuring out what else you might mean. Are you just trying to accuse Yoo of hypocrisy?

As for the debate about Yoo's memorandum of law, I don't think the purpose of the memorandum was to objectivly analyze how a court might rule but to establish that position as the official position of the executive branch.
2.12.2006 5:16pm
Federal Dog:
"As for the debate about Yoo's memorandum of law, I don't think the purpose of the memorandum was to objectivly analyze how a court might rule but to establish that position as the official position of the executive branch."


No matter what the purpose of the memo was, Bush is the president and calls the shots, not some guy named Yoo. Yoo simply drafted his client's legal argument based on available facts and law. Lawyers make clients' legal arguments for them every day, and that fact does not make them "war criminals."
2.12.2006 5:24pm
Frank Drackmann (mail):
I guessed Thomas Jefferson was the president.
2.12.2006 5:25pm
MDJD2B (mail):
He specifically wrote legal opinions to justify the torture and illegal detention of enemy combatants in violation of the U.S. Constitution, U.S. law (both civil and under the UCMJ), U.S. treaty obligations (including the Geneva Conventions and the International Convention Against Torture and Other Cruel, Inhuman and Degrading Punishment or Treatment) and general international law. As such he is partly responsible--and I would argue criminally liable-- for all the various war crimes that this administration has committed since the war on terror has started.

Advocacy of policies or legislation cannnot be criminal. I'm not sure whether enacting legislation or promulgating regulation that enables criminal action is criminal-- an expert in international law could answer that question. Assuming, arguendo, that Yoo composed legal justification for acts that prove to be criminal, are you saying that such legal advocacy (as opposed to authorizing or carrying out those acts) is criminal?
2.12.2006 5:37pm
Visitor Again:
On the Nuremberg trials of nAZI judges and prosecutors, see here.

Memos about how the law shoud be interpreted/twisted to authorize horrible ends were just the sort of stuff the Nuremberg prosecutors seized on to get their man.
2.12.2006 5:42pm
MDJD2B (mail):
I'm pretty sure lawyers and judges were tried at Nueremberg

I'm pretty sure they were tried for enacting regulations from a position of responsibility, for prosecuting specific individuals or for passing specific judgments, and not for advocating general policies.
2.12.2006 5:42pm
Freder Frederson (mail):
Assuming, arguendo, that Yoo composed legal justification for acts that prove to be criminal, are you saying that such legal advocacy (as opposed to authorizing or carrying out those acts) is criminal?

In the special case of crimes against humanity (which torture is) where the advocate is taking such a position as an official government representative (which he was), then yes it is. I think you will find precedent in the Nuremburg trials and in the UCMJ, where for such crimes there is kind of a super duper strict liability.
2.12.2006 5:43pm
Charlie (Colorado) (mail):
Pretty nearly all of them?
2.12.2006 5:45pm
Kovarsky (mail):
"if the worst thing that happens when a vice-president oversteps his power is an obviously correct decision during a panic with an apparent leadership vacuum, I'm all for it."

i logged out of my computer then logged back in. that was the first quote that i saw. i didn't remember which thread i was on, but - and i swear this was my first thought - looking at that remark i thought i accidentally loaded a thread about katrina.
2.12.2006 5:46pm
MDJD2B (mail):
On the Nuremberg trials of nAZI judges and prosecutors, see here.

Visitor again,

Memos about how the law shoud be interpreted/twisted to authorize horrible ends were just the sort of stuff the Nuremberg prosecutors seized on to get their man.
No— your link describes proscecution at the Nuerenberg war crimes trial of lawyers and judges for specific ellegal prosecutions and judgments, and not for writing memos advocating such prosecutions.
2.12.2006 5:50pm
Freder Frederson (mail):
Remember, in the case of torture, under the UCMJ it is not enough for a soldier to not torture someone, they have an affirmative duty to prevent torture and stop acts of torture if they observe it. Likewise, it doesn't seem to be much of a stretch to say that a government attorney has the affirmative duty to tell the President, when asked, that torture is illegal under all circumstances, not the exact opposite.
2.12.2006 5:54pm
Charlie (Colorado) (mail):
SLS, I think the whole content of Orin's "argument", at least as my be adduced from this posting, is: "What goes around, comes around."
2.12.2006 5:55pm
Kazinski:
It does seem a little bit rich coming from John Yoo. But it is a little hard to judge without the context. But if Yoo was talking about the Serbian bombing campaign he does have a point. Clinton did assert a more expansive view of presidential power than Bush has asserted so far. Clinton led a long (79 days I think) bombing campaign against another country without any Congressional authorization or appropriation, or treaty obligation. He didn't even have the figleaf of UN authorization which of course would be meaningless in terms of the constitution or U.S. law.

Bush might think the precedent of an exstensive, but limited bombing campaign without Congressional or UN approval might come in handy in dealing with Iran. It will be interesting to see what Yoo says then.
2.12.2006 5:55pm
Just an Observer:
On the matter of Yoo's memos, I think a commenter in another thead, Bruce Hayden, put it well when he described the utility of legal opinions in the Bush administration:

I see the DoJ and AG doing just that for the President - giving him legal cover from a claim that he willfully broke the law.


I agree with this candid appraisal, and I think it is a shame. (In fairness, I'm not sure that Bruce's normative view is the same as mine) One of the great harms done to the system by Bush's overly aggressive attitude on the matter of executive power has not just been to separation of powers, but to the integrity of legal opinion within DOJ.

I have no experience dealing with the Office of Legal Counsel, but from what I have read lately the Bush administration seems to have eroded the ethos of objective professionalism that used to be there.

All administrations certainly influence the results of opinions at OLC. But there is a line, which I think Bruce described in the sentence I quote above, and Bush has crossed it. Traditionally, that office has had the good-faith mission of explaining to the executive branch what the law is, not just what political officials can get away with.
2.12.2006 5:59pm
Charlie (Colorado) (mail):
Freder, after a little consideration of the many foolish, ironic, and ill-conceived things you've said, I think I've got to come down to one question: what does Yoo's status as a supposed war criminal have to do with whether or not he wrote that?
2.12.2006 6:00pm
Kovarsky (mail):
I think the idea that "the government is a client" is a little misleading when we're talking about OLC and DOJ.

When the DOJ represents the government in court, then yes, they enjoy an attorney-client relationship and the positions attorneys take should be construed as persuasive advocacy.

But the idea that this role translates in some of these other contexts is profoundly disturbing. The role of those entities is most decided NOT as an advocate in those situations - they are not supposed to be telling the president what he wants to hear, but what is legal and what isn't.
2.12.2006 6:06pm
Freder Frederson (mail):
what does Yoo's status as a supposed war criminal have to do with whether or not he wrote that?

The quote in the post just reaffirms my loathing of him and my opinion that he lacks any morality. He obviously could care less about the law and merely writes his "objective memoes" to achieve results based goals and state the law as he thinks it should be based on the president currently in office, not what it actually is.

And don't think I didn't notice that instead of attacking my arguments on the merits you just chose to insult me.
2.12.2006 6:08pm
Kovarsky (mail):
Charlie,

To answer on Freder's behalf if I may be so bold,

NO.

What matters is that he endorsed it with his legal, professional, and personal authority.
2.12.2006 6:08pm
Dave Hardy (mail) (www):
I'm pretty sure lawyers and judges were tried at Nueremberg.

Perhaps at Nuremburg, but I just read a complaint that the Japanese prosecutors and judges who railroaded and executed Doolittle's captured pilots were never touched.
2.12.2006 7:37pm
MDJD2B (mail):
Remember, in the case of torture, under the UCMJ it is not enough for a soldier to not torture someone, they have an affirmative duty to prevent torture and stop acts of torture if they observe it. Likewise, it doesn't seem to be much of a stretch to say that a government attorney has the affirmative duty to tell the President, when asked, that torture is illegal under all circumstances, not the exact opposite.

Are DOJ lawyers covered by the UCMJ? (hint-- the answer is no.) Was Prof. Yoo recommending that U.S. soldiers torture anyone protected by an internatial legal convention governing activities of combatants?

Your argument actually seems like a large stretch, because (1)the UCMJ only covers activities of soldiers, and Prof. Yoo was not one, (2) there is disagreement as to what torture is, and (3) his advice pertained, as I understand it to treatment of combatants not in uniform or not in the army of a belligerent, and these people have few or no rights under the conventions governing warfare.

Torture clearly may be a violation of human rights as accepted by a large segment ofthe international community. But that is not the same thing as it being a war crime.

Regardless of whether Prof. Yoo is a nice guy, or whether you or I agree with him, or whether we are disgusted by some of the things he advocates, he can only be a war criminal if he has violated generally accepted legal prohibitions with regard to war. If the best you can do is point to the UCMJ, you have no argument.
2.12.2006 7:52pm
gr (www):

If the memo was persuasive, with what court was it filed? I had understood that it was an internal, objective memo drafted for administration use alone.


My understanding is that it was subjective in that it was meant to reach the goal of allowing what they wanted. I also understand the claim to be that it was a roadmap to doing things that are war crimes.
2.12.2006 8:08pm
Mahan Atma (mail):
I can't believe anybody would seriously assert that legal advocacy cannot constitute a crime.

Are you people lawyers? What makes you think lawyers cannot be prosecuted for advising someone to do something illegal, any less than your average Joe can? It's called "aiding and abetting"; see 18 U.S.C. Section 2(a):

Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.



But hey, if you honestly think you're right, perhaps you ought to inform the DOJ, which is presently prosecuting quite a few lawyers for doing "nothing more" than giving legal advice. Google Raymond "RJ" Ruble for one example. And his advice sure didn't lead to anyone getting killed or tortured.
2.12.2006 8:11pm
Mahan Atma (mail):
"Are DOJ lawyers covered by the UCMJ? (hint-- the answer is no.)"

I think it would be illegal under federal law for someone not covered by the UCMJ to advise someone who is covered to violate it.

In any case, war crimes are also defined under general federal statutes (e.g. 18 U.S.C. 2441, which covers all U.S. nationals, not just members of the Armed Forces); so you needn't go as far as the UCMJ.
2.12.2006 8:19pm
Charlie (Colorado) (mail):
I asked:

what does Yoo's status as a supposed war criminal have to do with whether or not he wrote that [quotation]?

Answer:

The quote in the post just reaffirms my loathing of him and my opinion that he lacks any morality.

Which is to say, nothing. It was completely off topic.

And don't think I didn't notice that instead of attacking my arguments on the merits you just chose to insult me.

God, I should hope so. I tried very hard. I was afraid I'd have to taunt you again.
2.12.2006 8:31pm
Kovarsky (mail):
Mahan,

I don't think think legal advocacy can constitute a crime, but I think you're mixing up advocacy and advice.

Even if we substitute "advice" and talk about the proposition that no legal advice can constitute a crime, I don't think anybody's taking that position either. I think the arguments here are about Yoo's advice, and the context in which it was given, not some prophylactic rule.
2.12.2006 8:56pm
Justin (mail):
A foolish consistency is the hobgoblin of small minds.
2.12.2006 9:28pm
Donald Meaker (mail):
The Geneva Convention clearly defines legal combatants. Illegal combatants are not granted any protection by the Geneva Convention. Persons who do not avoid damage to schools, religious structures, or hospitals are not legal combatants. Persons who do not fight with a uniform, clearly recognizable at a distance are not legal combatants.

The rules of legal combatants are put in place to protect civilians and non-combatants. The lack of protection for illegal combatants is intended to encourage compliance with the behaviors which mark the definition of legal combatants. If the US did torture illegal combatants, do you think that the terrorists would begin to wear uniforms, and avoid damage to non-combatants? If that is so, can you make a moral argument against torture?

I would torture every illegal combatant for as long as they could be kept alive, as an incentive for illegal combatants to turn from their behavior and fight in an honorable way. I would also provide video on the internet and television, in an attempt to protect children from attacks aimed at them by the terrorists.

I would draw the line here: I would not torture members of their families, not out of tender feelings for the terrorists, but because often sociopaths are not controlled by their families.
2.12.2006 9:36pm
Mahan Atma (mail):
"I don't think think legal advocacy can constitute a crime, but I think you're mixing up advocacy and advice."

It seems to me that under the language of 18 U.S.C. 2, quoted above, either advocacy or advice can constitute a crime, if by doing so you counsel or induce your client to do something illegal.
2.12.2006 9:39pm
Defending the Indefensible:
Charlie:

And don't think I didn't notice that instead of attacking my arguments on the merits you just chose to insult me.
God, I should hope so. I tried very hard. I was afraid I'd have to taunt you again.
Is your purpose here to be personally insulting to participants?
2.12.2006 9:42pm
Steve J. (mail) (www):
I don't think a lawyer can really be a war criminal for writing a legal opinion.

If they are part of the war machine, they can be.
2.12.2006 10:16pm
Steve J. (mail) (www):
The Nuremberg Trials:
The Justice Trial
United States of America v. Alst"tter et al.
("The Justice Case") 3 T.W.C. 1 (1948), 6 L.R.T.W.C. 1 (1948), 14 Ann. Dig. 278 (1948).
The Justice Trial is one of the most interesting of the Nuremberg trials. The trial of sixteen defendants,
members of the Reich Ministry of Justice or People's and Special Courts, raised the issue of what responsibility
judges might have for enforcing grossly unjust--but arguably binding--laws
Trying Body: Military Tribunal III
Arraignment Date: Feb. 17, 1947
Trial Opened: March 5, 1947
Summations Concluded: October 18, 1947
Verdicts Returned: Dec. 3 and 4, 1947
Verdict: Ten of the sixteen defendants convicted, four acquitted, one died before verdict, one mistrial due to
serious illness during trial.
Sentence: Four defendants sentenced to life, the other six convicted defendants sentenced to terms ranging from
five to ten years.
LINK
2.12.2006 10:20pm
Justin (mail):
If the US did torture illegal combatants, do you think that the terrorists would begin to wear uniforms, and avoid damage to non-combatants?

No.

If that is so, can you make a moral argument against torture?

Yes.

(This is easy)
2.12.2006 11:42pm
AnonymouslyYours (mail):
As Steve J has posted the link to the Judge's trial, lawyers can be war criminals. The charge at Nuremberg was formally called "abuse of the judicial process." They don't teach that one in Ethics class. But maybe they should start. But if I can be held liable for an opinion letter I write about a deal for a major corporation under the Securities Law, I think I could be held liable for an opinion letter I write to the U.S. government justifying torture.

And as for torturing illegal combatants. Status has nothing to do with torture. Torture is non-derogable in international law (and I'd argue U.S. constitutional law). It cannot be inflicted on anyone, for any reason.
2.12.2006 11:49pm
KMAJ (mail):
I think it would be helpful to know what specific actions President Clinton did that Yoo was referring to in order to make any judgement on the commentary as to consistency. Could he be referring to making decisions that would subvert the authority of the Constitution in favor of the UN charter or International Law ? If so, there would be no lack of consistency. If he is talking about war in Bosnia and Kosovo, in neither situation were they in our national interest or a threat to our security. It appears, without full context of the specifics Yoo was referring to, any claim of inconsistency or hypocrisy is specious at best.
2.13.2006 12:00am
dave (mail):
Persons who do not avoid damage to schools, religious structures, or hospitals are not legal combatants.

So when Iraqis or Afghanistans capture our soldiers and torture them, that'll be just jake with you?

Guess that's the difference between leftist softies like me and those manly men sitting in their armchairs of the right: I don't want there to be any excuse for people to torture our fighting men. Sorry you feel different.

But I'm not surprised.
2.13.2006 12:00am
owlbear1 (mail):
Hypocrisy from a Bush sycophant? I'm SHOCKED! Shocked I tell you!
2.13.2006 12:27am
Mary Katherine Day-Petrano (mail):
"I think it would be helpful to know what specific actions President Clinton did that Yoo was referring to in order to make any judgement on the commentary as to consistency."

Oh, I don't think it's that deep. Yoo doesn't like Clinton because he's a Democrat.
2.13.2006 12:39am
KMAJ (mail):
Mary Katherine Day-Petrano,

I don't think whether Yoo liked Clinton is relevant, but the context is very important in evaluating a statement. I personally wouldn't care what party a president was if he subverted the Constitution to outside authority that we the people did not vote for, that would be an Imperial decision. I supported Bosnia and Kosovo because of the genocide, though I later found out I shouldn't have supported Kosovo because the genocide charge turned out to be false.
2.13.2006 1:29am
minnie:
There's nothing that thrills me more than a person who not only has a moral conscience, but is intensely passionate in his loathing of those who have none and act accordingly.

Freder, your posts are a literal tonic for the soul.

Yoo is a war criminal alright. His hypocrisy, although consistent with his lack of any moral compass, is a minor crime compared to positions he took to advance his career that resulted in the deaths and unspeakable torment, pain and anguish of those innocents who were tortured by our government, many of whom were guilty of nothing more than being sold by some Afghanistan war lord into the hands of the depraved crowd.

I can only hope that now that the tide has started to turn, it will turn with such a vengence that it won't matter whether Yoo is tried for his crimes against humanity and goes to prison. There are punishments other than prison, and they will fall upon him.

Mary, your posts get better and better! Write more!
2.13.2006 2:27am
Wintermute (www):
Clinton did some crappy interventionist sh..., er, things. He didn't feel my pain, and I don't defend him. And he lied on a deposition and got disbarred for it, and distracted the nation from the pursuit of its citizens' own happiness because he selfishly pursued his by getting some strange in the Oval Office. Nice example. Anyway, here's the Yoo memorandum.
2.13.2006 2:34am
Kovarsky (mail):
I think anybody that's followed my posts on these NSA threads knows that I am utterly infuriated with this administration's opacity. I am more infuriated that such a lack of transparency is almost invariably used in the self-aggrandizing interest of the executive branch. I am EVEN further infuriated with many of the things that the executive does with that informationally-obscured-self-aggrandized power, such as engage in acts of unsupervised torture (but notably, not the wiretapping, as I understand it).

John Yoo is the intellectual backbone of that executive project. I used to think his motives were genuine, but the systemic exposure of the fact that he cherry-picked his citations to the Federalist papers, combined with other revelations such as the one on this thread, called his methods and motive into question as well. I detest his ideas, the way this administration has internalized them, and the way it has systematically silenced dissent from them. I believe they present the single most fundamental structural threat to our separation of powers.

But to call this man a war criminal is lunacy. Without even getting into the legal absurdity of it, levelling this accusation sacrifices credibility on so many other more important issues. It is precisely claims such as these that give O'Reilly and Hannity fodder their drooling-stupid appeals to our most base instincts of fear and insecurity.
2.13.2006 2:44am
jgshapiro (mail):
If there is a corollary to Godwin's law (see, i.e, link) it should not be for comparisons to Clinton, but instead be for using the words "war criminal" in debates over the wars in Iraq and Afganistan, whereby the writer intends to conflate the likes of Hussein, Milosevic, et. al. with Bush, Cheney, Rumsfeld, and now John Yoo, a DOJ lawyer with (pick one) 1) a poor grasp of separation of powers, or b) an aggressive take on the CINC powers of the president.

Perhaps it is worth pointing out to the trolls who use this word that they instantly lose most/all of their credibility when they do so, and that if the point is to persuade and not to slap each other on the back (see, e.g., post of Minnie above), they might try a more subtle approach.

On the other hand, anyone who thinks Yoo, whatever the merits of his legal analyses, is going to be "tried for his crimes against humanity," is operating so far from the normal rules of discourse, and living so far from reality, that there is probably no point in responding.
2.13.2006 5:22am
Pooh (www):
But to call this man a war criminal is lunacy. Without even getting into the legal absurdity of it, levelling this accusation sacrifices credibility on so many other more important issues. It is precisely claims such as these that give O'Reilly and Hannity fodder their drooling-stupid appeals to our most base instincts of fear and insecurity.


As reprehensible as I find Yoo, I have to agree. Though his claims to 'good faith' took a major hit when he started flogging a book on his greatest hits, "war criminal" is such a loaded term that it shuts down debate almost as fast as a Godwinning.
2.13.2006 5:22am
AlanDownunder (mail):
1. What extra things are needed to make an American a war criminal over and above the things that make Germans or Slavs war criminals?

2. How did Yoo acquire academic status. What happened to peer review in US legal academe?
2.13.2006 5:49am
Kovarsky (mail):
Pooh,

And almost as fast as "trolls."

By the way, does anybody else notice that this adminsitration browbeats the dems into "bipartisanship" and then when things go terribly wrong they pretend that the Dems were in full agreement the entire time?

Just a random observation involving both the intel case for war and the NSA bit; i'm guessing there are others.

This, by the way, breaks my new self-imposed cardinal rule of leaving the trees for the forest on these NSA threads.
2.13.2006 6:06am
Freder Frederson (mail):
Okay, let me respond here since I was the one who first used the dreaded phrase "war criminal". Of course there are degrees of war crimes and I am not saying that the alleged war crimes of this administration raise to the level of others in the twentieth century or that they will ever see the inside of a courtroom or be impeached for their alleged crimes.

But let's get a couple things straight:

1) Torture is illegal under U.S. and international law even against people who are not covered by the Constitution or the Geneva Conventions. Anyone who commits or orders torture--or in the case of certain persons, is in a position to stop it and does not, is guilty of a crime a against humanity, and if carried out in the course of a war, a war crime.

2) Donald Rumsfeld has publically admitted, in a press conference, on camera, to a war crime, by admitting to hiding detainees from the ICRC at the request of the the director of the CIA. By making the request, the Director of the CIA also committed a war crime.

3) Setting up a series of secret prisons in foreign countries where people are held with absolutely no due process rights violate all international norms and probably constitute a crime against humanity.

4) The president frequently says "we don't torture", but since he has thrown out all the old rules for treatment of detainees there are no clear rules as to what constitutes "humane" treatment (the actual standard under the law-- simply not torturing is not good enought) so we don't know if his definition of not torturing is legally sufficient.
2.13.2006 7:55am
Sam:

"so we don't know if his definition of not torturing is legally sufficient."



And we'll never know if you are going to prosecute his attorney if he doesn't come up with a definition that suits you. I'm glad disagreeing with your legal interpretation -— which many reasonable people have done -— is now a crime against humanity.
2.13.2006 8:28am
Huggy (mail):
All this bandying about of the word torture. I think it has been proven that words mean whatever the best politician says they mean. And that the meaning of words change often.
Mentioning a specific act would be the best if a person wants to call Yoo a war criminal. As in Yoo who said it was ok to pull out fingernails to get information. Or Yoo who said it was ok to wave cake under someones nose to get information.
Note that progress has been made. Everyone in this tread does agree that a war is going on. Can't have a war criminal without a war. -grin-
2.13.2006 8:31am
UpHere:
How did Yoo acquire academic status. What happened to peer review in US legal academe?

You basically purhase academic credentials in the the United States; they are a consumer product like any other.
2.13.2006 9:29am
Harry N. (mail):
Freder, What if there was a statute that specifically said "notwithstanding any other law, torture and detention of enemy combatants are allowed at the sole discretion of the President"? If a government lawyer was asked to legally analyze torturing and detaining enemy combatants, would it be okay for them to point out this statute? Or would they be a war criminal if they did so?

What if this was a constitutional provision?

Yes, I realize that this is not analogous, as there are substantial legal arguments that Yoo's analysis of the law was incorrect. But what if Yoo's interpretation of the law was correct, or at least reasonable? Is it a war crime to accurately or reasonably explain what you think the law is, if that law would allow some other actor to do something that is deeply immoral?
2.13.2006 9:51am
Justin (mail):
Harry N.,

Yes, a war crime is based on failure to follow international law and norms, not local ones. Dworkin's "Law's Empire" and some of HLA Hart's legal writings tussle with some of the more natural difficulties and the borderline ex post facto issues with international criminal law, but the US Constitution is irrelevant in determining what is and what is not a war crime.
2.13.2006 10:03am
MDJD2B (mail):
The Nuremberg Trials:
The Justice Trial
United States of America v. Alst"tter et al.
("The Justice Case") 3 T.W.C. 1 (1948), 6 L.R.T.W.C. 1 (1948), 14 Ann. Dig. 278 (1948).
The Justice Trial is one of the most interesting of the Nuremberg trials. The trial of sixteen defendants,
members of the Reich Ministry of Justice or People's and Special Courts, raised the issue of what responsibility
judges might have for enforcing grossly unjust—but arguably binding—laws
Trying Body: Military Tribunal III
Arraignment Date: Feb. 17, 1947
Trial Opened: March 5, 1947
Summations Concluded: October 18, 1947
Verdicts Returned: Dec. 3 and 4, 1947
Verdict: Ten of the sixteen defendants convicted, four acquitted, one died before verdict, one mistrial due to
serious illness during trial.
Sentence: Four defendants sentenced to life, the other six convicted defendants sentenced to terms ranging from
five to ten years.
LINK


These were convictions for abuse of judicial power, not for giing illegal advice.
2.13.2006 10:03am
SLS 1L:
Alan:
How did Yoo acquire academic status. What happened to peer review in US legal academe?
What peer review? Peer review is for wussy professors in disciplines with starting salaries of less than $100K. Here in Serious Disciplines like Law we apparently have no need for peer review.
2.13.2006 10:05am
MDJD2B (mail):
Wintermute,

Thanks for the link to the memorandum. Did you see anything in there about providing a legal cover for totrute? I didn't.
2.13.2006 10:07am
volokh watcher (mail):
Kovarsky said:

I don't think a lawyer can really be a war criminal for writing a legal opinion. I certainly wouldn't want to hold lawyers accountable in ways like this.


Sorry to report that this very administration is currently criminally prosecuting several attorneys for alleging issuing fraudulent tax-shelter opinions.

Look, I agree with your point. But this administration sees it differently.
2.13.2006 10:07am
Don Miller (mail):
I love how people are arguing about whether or not someone is a war criminal and torture without defining the terms.

Torture specifically means different things to different people. It seems to me, that a lot of people are using a more expansive definition of torture than I use. My definition of torture is the use of physical pain to with the intent to gather information or to cause suffering.

Aggressive questioning techniques that put make a prisoner feel like their life is in danger if they don't cooperate, techniques that break a prisoners mental will to resist, that don't actually put the person's life at risk, are okay in my book and don't constitute torture. It is okay for the person to think their life is in danger.

Of course, my views on Constitutional protections and due process rights are a little more limited than the average lawyers. I don't believe prisoners captured on a battlefield in another country, that are not present in this country have any rights under the US Constitution. They have some due process rights under the military justice system, the laws of the country they were captured, or held in, or under international law, but not under the US Constitution.

You can disagree with me if you want, but this is an area of unsettled law. In fact it is brand new law. I can not recall a case from any previous war in US History where US Lawyers tried to represent the interests of a prisoner being held in a US Military Prison overseas, in US District Court.

The US has captured prisoners in every war or battle we have ever fought. Bosnia, Somalia, Grenada, Panama, Vietnam, Korea, WW2, WW1, etc. In the case of WW2, we even housed Axis Prisoners of War in camps inside the United States. I don't believe anyone ever considered challenging the detention of even one person in US Courts.

You can stand on your soap box all day and scream about "illegal detentions" and "war crimes" all day. But you are spouting your own personal beliefs and opinions. There is no case law and just because you said it doesn't make it true. Even under International Law, there is a presumption of innocence, so there are no war criminals until there has been a trial. Also remember, war criminals are defined by the winners, not the losers.
2.13.2006 11:09am
Visitor Again:
MDJD2B:

No— your link describes proscecution at the Nuerenberg war crimes trial of lawyers and judges for specific ellegal prosecutions and judgments, and not for writing memos advocating such prosecutions.

And the prosecution of Yoo would be for specific illkgal tortures for which he was responsible by virtue of his justifying memos.
2.13.2006 11:31am
Freder Frederson (mail):
What if there was a statute that specifically said "notwithstanding any other law, torture and detention of enemy combatants are allowed at the sole discretion of the President"?

Such a statute would clearly be unconstitutional and it would directly contradict international treaty obligations. I can't even imagine amending the Constitution to include such a provision. It would be like amending the constitution to grant the president the power to declare war.

Understand this, as I have pointed out repeatedly, not only is torture illegal, regardless of the status of the person being tortured, but so is cruel, inhuman and degrading punishment or treatment. This has probably been true since we signed the original Geneva Accords and certainly been true since we ratified the International Convention Against Torture and Other Cruel, Inhuman, Cruel or Degrading Punishment or Treatment. The McCain Amendment merely reiterated this standard for a president who just doesn't seem to get it. (And from his signing statement still doesn't get it.)

It is not sufficient for the President to say we don't torture detainees. That, even if it is true, is simply not sufficient under the law and treaty obligations (which have the force of law) to absolve him of criminal liability. Regardless, for the President to say "we don't torture" is simply a lie. There are at least three well documented cases reported in the press that were absolutely undisputed of detainees, two in Afghanistan, one in Iraq, being tortured to death, by any reasonable definition of the term. Whether or not these activities were carried out with the knowledge, instructions, under the order or color of authority, or negligence of higher command is a question that has not been adequately addressed. It is also generally acknowledged that we have used waterboarding. Waterboarding is widely acknowledged as torture and it is certainly an inhuman practice.
2.13.2006 11:59am
Freder Frederson (mail):
Torture specifically means different things to different people. It seems to me, that a lot of people are using a more expansive definition of torture than I use. My definition of torture is the use of physical pain to with the intent to gather information or to cause suffering.

Well that's why I think the president owes us the courtesy of fleshing out what he means when he says "we don't torture". The military had a perfectly workable system that served them well for sixty years. Yet Rumsfeld wanted to throw it out. Look at what happened when they threw the rulebook out--the scandals at Abu Gharaib and the mistreatment in Afghanistan. You can't say "we don't torture, but we won't tell you what we call torture", it just leaves everyone confused and leads to abuse.
2.13.2006 12:07pm
David M. Nieporent (www):
You can disagree with me if you want, but this is an area of unsettled law. In fact it is brand new law. I can not recall a case from any previous war in US History where US Lawyers tried to represent the interests of a prisoner being held in a US Military Prison overseas, in US District Court.
Don, you might want to look into Johnson v. Eisentrager.

It failed, but they certainly tried.
2.13.2006 12:55pm
Harry N. (mail):
Justin and Freder, you both miss my point.

First, Justin. You say that international norms trump domestic law. That may be true as a matter of international law. But suppose the memo is simply asking a lawyer to explain what the domestic law is. Is that lawyer allowed to answer that question honestly (which, in my hypothetical, requires the lawyer to say "U.S. law does not prohibit torture")? Or is this honest legal answer a "war crime"?

Okay, Freder, your problem is that you are again assuming the answer to the question. You assume that the answers to these questions are unambiguous. Perhaps you are right, and thus John Yoo is a very incompetent lawyer. But what if you are wrong, or at least not uncontrovertably right? Or what about a hypothetical situation where your premises about U.S. law are changed? Is a government lawyer who gives a correct interpretation of domestic U.S. law a war criminal when that domestic law allows for torture? Or would the government lawyer required to lie about what U.S. law says?
2.13.2006 12:57pm
Freder Frederson (mail):
Is a government lawyer who gives a correct interpretation of domestic U.S. law a war criminal when that domestic law allows for torture? Or would the government lawyer required to lie about what U.S. law says?

Well, domestic law doesn't allow for torture. Even the president doesn't dispute that. So if John Yoo argued that then he was wrong and since torture is a strict liability crime could be held criminally liable.

Now if U.S. law specifically held that torture was legal, then the U.S. would be in breach of its international treaty obligations and international human rights laws. Those parties that advocated or carried out those breaches and crimes against humanity would be subject to the jurisdiction of several international courts and countries' jursdictions who claim a right to prosecute crimes against humanity where ever they occur in the world and regardless of the nationality of the perpatrator (Germany, for instance has such a law, and somebody has already, unsuccessfully, tried to pursue a case against Rumsfeld under that law). Don't forget that Pinochet narrowly escaped prosecution in Spain for crimes he committed in Chile.

That is exactly why we object to the ICC. We don't want other countries telling us what is legal in our own country. But that doesn't mean that our citizens are beyond the reach of international law. It is said that Henry Kissinger has a list of countries he can't visit for fear of imprisonment and trial for war crimes he is wanted for during the Vietnam era.
2.13.2006 1:17pm
Freder Frederson (mail):
But what if you are wrong, or at least not uncontrovertably right? Or what about a hypothetical situation where your premises about U.S. law are changed?

I don't know what can be so hard or difficult to grasp about a treaty that is signed by the president and ratified by the Congress that the very title of which lays out in no uncertain terms what it is banning (i.e., torture, cruel, inhuman, or degrading punishment or treatment). When the president says "we don't torture" he is demonstrating he just doesn't get it.

If he wants to comply with the law he should say "we don't torture or treat or punish detainees in a cruel, inhuman or degrading manner". Only when he can assure us of that, is he actually complying with the law. That is what the law and morality require. Any lawyer who tells the president otherwise is encouraging him to break the law. End of story.
2.13.2006 1:28pm
Harry N. (mail):
Perhaps I am not being clear. My question has nothing to do with whether U.S. law prohibits torture (which I think John Yoo actually agrees with, but he disagrees with your definition of torture) or whether international law has anything to say about the matter. My question is purely about the role of an attorney asked to say what the law is. Is the attorney in my hypothetical a "war criminal" simply because they are honestly answering the legal question they are given?
2.13.2006 1:31pm
Kazinski:
Ok Freder since you started this ball of wax, can you quote one incriminating paragraph from the Yoo memo, or any other of Yoo's writings?

And nobody has addressed the fact that Clinton committed the US to the bombing campaign in Serbia without Congressional approval or appropriation, without treaty obligation, and without UN approval. That does seem to be a assertion of Presidential power that goes further than any that Bush has asserted.
2.13.2006 1:31pm
Freder Frederson (mail):
which I think John Yoo actually agrees with, but he disagrees with your definition of torture

No, bear with me because I don't have the time to look for it right now, but as I recall the Yoo memo, Yoo argued that the inherent powers of the president trumped law and treaty obligations and that the president could order torture or even abrogation of the Geneva Accords if he deemed of it was necessary to advance the goal of defeating Al Qaeda. I think you will find he was arguing the President could order torture--however you choose to define it.

If I am right then he is culpable under international human rights law for advocating crimes against humanity. Now, I don't know how the president could arguably be bound by one international treaty (Geneva) while simultaneously being free to ignore a second (the Torture Convention) in his role as Commander in Chief. So either Yoo was saying the President was bound by no treaties or all of them. Or am I missing some basic principle of law?
2.13.2006 1:47pm
Freder Frederson (mail):
And nobody has addressed the fact that Clinton committed the US to the bombing campaign in Serbia without Congressional approval or appropriation, without treaty obligation, and without UN approval.

Well then, the Republicans should have impeached him for that instead of wasting all their time and effort on worrying about whether he lied to a Grand Jury about a blowjob.
2.13.2006 1:51pm
jgshapiro (mail):
Now, I don't know how the president could arguably be bound by one international treaty (Geneva) while simultaneously being free to ignore a second (the Torture Convention) in his role as Commander in Chief. So either Yoo was saying the President was bound by no treaties or all of them. Or am I missing some basic principle of law?

It doesn't make a lot of sense that you need the Senate to ratify treaties but the president can unilaterally abrogate them, but it is my understanding that has been the case for decades, in practice if not in the text of the Constitution. Whether the president needs to publicly abrogate them in their entirety, or can simply choose to do so quietly or partially, I don't know. Nevertheless, it does not seem that surprising that the president would consider himself bound by one treaty and not another if he had (or was about to) abrogate one and not the other.

Moreover, treaties are subject to constitutional restraints, just like ordinary statutes. Congress cannot circumvent a constitutional provision by ratifying a treaty that violates it. So if the president believes that Congress cannot constitutionally restrict his powers as CINC after an AUMF is passed and while the war is underway, then it would follow that this claim applies to treaties that restrict his wartime CINC powers (like the Torture Convention) as well as ordinary statutes (like the McCain Amendment).

In any event, how specific do the treaties get regarding the definition of torture and inhumane treatment? Apart from waterboarding -- which seems to be in the grey zone, since you are put in fear of drowning but your life is actually never in danger -- what interrogation techniques used by the Bush Administration are unequivocally torture under these treaties? Is their any proof that any of *those* methods have been used, or more to the point, were advocated or justified by John Yoo?
2.13.2006 2:21pm
Kovarsky (mail):
Kazinski,

Nobody has addressed that issue because it is not relevant to this discussion. The issue is Yoo's inconsistency in criticizing Clinton on those matters but writing that memo, not whether Clinton engaged in them.
2.13.2006 2:30pm
KMAJ (mail):
Freder,

I think you ignore the reservations the US filed as a signatory to the torture convention:

Reservations:

"I. The Senate's advice and consent is subject to the following reservations:

(1) That the United States considers itself bound by the obligation under article 16 to prevent `cruel, inhuman or degrading treatment or punishment', only insofar as the term `cruel, inhuman or degrading treatment or punishment' means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.

(2) That pursuant to article 30 (2) the United States declares that it does not consider itself bound by Article 30 (1), but reserves the right specifically to agree to follow this or any other procedure for arbitration in a particular case.

II. The Senate's advice and consent is subject to the following understandings, which shall apply to the obligations of the United States under this Convention:

(1) (a) That with reference to article 1, the United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.

(b) That the United States understands that the definition of torture in article 1 is intended to apply only to acts directed against persons in the offender's custody or physical control.

(c) That with reference to article 1 of the Convention, the United States understands that `sanctions' includes judicially-imposed sanctions and other enforcement actions authorized by United States law or by judicial interpretation of such law. Nonetheless, the United States understands that a State Party could not through its domestic sanctions defeat the object and purpose of the Convention to prohibit torture.

(d) That with reference to article 1 of the Convention, the United States understands that the term `acquiescence' requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his legal responsibility to intervene to prevent such activity.

(e) That with reference to article 1 of the Convention, the Unites States understands that noncompliance with applicable legal procedural standards does not per se constitute torture.

(2) That the United States understands the phrase, `where there are substantial grounds for believing that he would be in danger of being subjected to torture,' as used in article 3 of the Convention, to mean `if it is more likely than not that he would be tortured.'

(3) That it is the understanding of the United States that article 14 requires a State Party to provide a private right of action for damages only for acts of torture committed in territory under the jurisdiction of that State Party.

(4) That the United States understands that international law does not prohibit the death penalty, and does not consider this Convention to restrict or prohibit the United States from applying the death penalty consistent with the Fifth, Eighth and/or Fourteenth Amendments to the Constitution of the United States, including any constitutional period of confinement prior to the imposition of the death penalty.

(5) That the United States understands that this Convention shall be implemented by the United States Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered by the Convention and otherwise by the state and local governments. Accordingly, in implementing articles 10-14 and 16, the United States Government shall take measures appropriate to the Federal system to the end that the competent authorities of the constituent units of the United States of America may take appropriate measures for the fulfilment of the Convention.

III. The Senate's advice and consent is subject to the following declarations:

(1) That the United States declares that the provisions of articles 1 through 16 of the Convention are not self-executing.


Clearly, the Constitution overrules any UN or international standards.

The Geneva Convention is a totally different matter, as it specifically describes who is protected, and terrorists do not fall under the Geneva Convention.

Article 4
A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war.


3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

4. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

5. Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

B. The following shall likewise be treated as prisoners of war under the present Convention:

1. Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment.

2. The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.

C. This Article shall in no way affect the status of medical personnel and chaplains as provided for in Article 33 of the present Convention.


Clearly, for anyone to fall under Geneva protections, they must fulfill ALL four of the provisions, not just one, for POW status protection.
2.13.2006 2:41pm
agog:
Another: Kerry?


For those interested, here's a link to Yoo's discussion (I believe) outlining his paper:
http://www.cato.org/realaudio/con-07-12-00p4.ram

Yoo's portion starts at about 24:00.
2.13.2006 2:42pm
Kazinski:
Kovarsky,
It is relevent, the memo says that neither international law nor treaties can trump constitutionaly granted presidential power. I good case can be made Clinton's action went beyond the Presidents Constitutional authority. So the memo and the quote are not necessarily in conflict. Like I said before it is a litte bit rich coming from John Yoo, but it does at least put a damper on the inconsistency charge because Clinton did go further than Bush has gone in asserting presidental power to make war.

Freder:
I think the Bush administration will look favorably on the Clinton precedent when it comes time to deal with Iran. I think that will be a bombing campaign and I don't think Bush will get congressional approval in order to preserve operational secrecy.
2.13.2006 2:50pm
jgshapiro (mail):
I can't believe anybody would seriously assert that legal advocacy cannot constitute a crime.

Are you people lawyers? What makes you think lawyers cannot be prosecuted for advising someone to do something illegal, any less than your average Joe can? It's called "aiding and abetting"; see 18 U.S.C. Section 2(a):

Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
I think the poster here is using an extremely broad definition of "counsel." And the fact that the Bush Administration is prosecuting tax lawyers who set up faulty tax shelters, while perhaps ironic, is not proof that this is a reasonable interpretation of the word.

If a client comes to me and asks me "If I do "X", is that legal?" and I say yes, and I am wrong, that does not make me culpable for his crime as an advisor. Even if he is later convicted of committing the very crime I told him he would not be convicted of, I am not an aider or abettor for having given him bad legal advice. I am just a bad lawyer. The contrary conclusion leads to the criminalization of bad legal advice, and I imagine would lead attorneys to never give a straight answer to any question that could possible implicate criminal law. That cannot be a good incentive to create.

Now, if I advised or encouraged my client to actually engage in the conduct, thinking it was legal (as opposed to simply answering a question as to whether I thought it was legal), and I was wrong, you have a closer question. Even then, if I had an objectively reasonable belief based on case law at the time that the conduct was legal, it is hard to see how I could be prosecuted for the advice alone. Lawyers have to rely on the state of case law and statutes at the time they are asked for advice. It makes no sense to hold them accountable for future refinements of the statutes or case law that ran counter to their advice.

It is my recollection that Yoo falls into one of these categories -- either he did not advocate the conduct, but merely expressed his opinion that it was legal, or he did advocate the conduct, but on the basis of case law suggesting it was legal, or which was at worst, ambiguous.

My recollection is also that the tax lawyers who were prosecuted fell under a third or fourth category -- either their belief as to the state of the law was not objectively reasonable, or even worse, they did not even have a subjectively good faith belief that the conduct they advised was legal was actually legal, and were just trying to launder obvious criminality by giving their clients a legal opinion saying that the conduct in question was legal.

Of course, my recollections as to Yoo and the tax lawyers may be wrong, and I don't have time to look up these facts. But the basic point remains that giving bad legal advice is not a crime, even though it may be described as giving "counsel."
2.13.2006 2:52pm
Leslie (mail):
He certainly didn't have the authority to order the shoot-down of flight 93 on September 11.

No, but he sure knows how to shoot a hunting buddy.
2.13.2006 2:56pm
eddie (mail):
Here's a more general question that perhaps is more important that the "epiphany" regarding John Yoo:

I've heard so much chatter concerning a lawyer's responsibility to their client and how there should be no liability for giving a legal opinion.

Then, in the same breath we are presented with the "top" legal talent of this country running away from the opinions they have given, stating "well that wasn't really what I believe, but simply a legal argument."

So here's my question: When is the legal community going to start taking any responsibility for the utterly vacant values being applied in modern legal arguments. That there are commentators here who think (a) we are currently in a real war (b) which necessitates the shredding of some of the most basic tenets of our consitutional bedrock, disgusts me. Oh yeah, I hear that old saw of a law school saying ringing in my ears "Make the argument."

So when I hear statements like, well signing and ratifying treaties has always been about a President's prerogative to ignore same, I scratch my head and wonder.

This is an example of the ethical bankruptcy of lawyering: as long as I zealously defend my client, then I am not guilty of the immorality that I am arguing to protect. John Yoo's arguments here only point out that he holds his own arguments in contempt. The law should apply to all individuals or no individuals.

This was a very diffuse post. I am sorry. I cannot really put the right words together to explain what I am complaining about. But the world does not need any more debating society contestants who care not which side they argue. But more importantly, the world needs a few honest persons who will argue with a the courage of their convictions and not simply to be part of a club or to participate in some intellectual game.

The reason that there is such ideological warfare going on has to do with the cult of personality attaching to the ideologies and not to the honest competition of ideas.

In John Yoo's world, there is no need for compromise because compromise itself is seen as losing the argument. We have come to the end of politics in this country unless all of the "intellectuals" start living in the real world that is messy and stop thinking that governance is about having a convincing business plan.
2.13.2006 2:59pm
Harry N. (mail):
Since Freder clearly has no interest in actually answering my question, I will bow out of this discussion with a general expression of agreement jgshapiro's last post.

Also, I should mention that it is actually quite a respectable (and very likely correct) position to hold that the President can (as a matter of domestic law) unilaterally abrogate treaties. After all, treaties can only be entered into with the consent of both the President and two-thirds of the Senate. The fact that the entry of treaty obligations are thus disfavored by the Constitution coupled with the foreign policy/diplomacy power of the President has led courts to find unilateral presidential treaty abrogation to be legally permitted. As a matter of international law, it may not be permissible to just disregard a treaty. But the Constitution probably allows a President to do it.
2.13.2006 3:09pm
Freder Frederson (mail):
Is the attorney in my hypothetical a "war criminal" simply because they are honestly answering the legal question they are given?

If you are asking if a lawyer is criminally liable for answering whether something is legal under national law that is clearly illegal under international human rights law. (Say for instance--as an extreme example--the U.S. passed a Constitutional Amendment that outlawed Islam and made the practice of Islam a capital offense and began rounding up and summararily executing Muslims). This would obviously constitute genocide and any other nation in the world would be justified in waging war against us to stop it.

The people responsible for implementing the policy including those lawyers who claimed it was "legal" (because it was duly enacted under proper Constitutional procedures) would presumably be subject to prosecution for crimes against humanity. So yes, in such a case, the lawyer would be guilty of a crime. Torture is the same type of thing on a smaller level, it is recognized, or at least should be, as something that is something that civilized nations just do not do under any circumstances. That we have to argue about it is just absurd. That lawyers think that the President can order it is even more absurd. We are supposed to be better than that.
2.13.2006 3:40pm
Harry N. (mail):
Interesting. So to be a war criminal one need not actually believe torture, genocide, or any other war crime is morally permissible. If you simply believe that international law is not necessarily binding in the United States, you too may be a war criminal, according to Freder Frederson. Because you might someday be asked about whether an immoral U.S. law has been properly enacted. And if it has, and you answer honestly, you are then a war criminal.

Quite a shocking criminalization of disagreement with your legal views, if you ask me.
2.13.2006 4:00pm
Freder Frederson (mail):
Because you might someday be asked about whether an immoral U.S. law has been properly enacted. And if it has, and you answer honestly, you are then a war criminal.

That isn't what I said and you know it. If you don't believe that international law exists and that it doesn't have real consequences for those who run afoul of it, then you have been living under a rock for the last sixty years. Any lawyer who would tell a chief of state that a national law, even one that was passed under the proper national authority of that country, that clearly violates international human rights law, is certainly holding himself to ultimately be held to account.

Look at Saddam Hussein. I'm sure he was acting well within Iraqi National Law when he ordered the execution of those 141 villagers. Now he is on trial for his life.
2.13.2006 4:12pm
Harry N. (mail):
Yeah, I get that you think your view of the binding nature of international law on the U.S. is obviously correct, and anyone who disagrees must be a buffoon or an incompetent lawyer. I just think it degrades the term "war criminal" to call anyone who might contest that view a war criminal. And that is exactly what you are saying, and you know it. That is essentially what John Yoo did (along with some perhaps flawed statutory interpretation). And for that (in your view incorrect) opinion about what the law is, you call him a war criminal.

That's all I've got. I have more important things I should be working on.
2.13.2006 4:25pm
Charlie (Colorado) (mail):

Is your purpose here to be personally insulting to participants?



Only when it's deserved.
2.13.2006 5:37pm
Charlie (Colorado) (mail):

Well then, the Republicans should have impeached him for that instead of wasting all their time and effort on worrying about whether he lied to a Grand Jury about a blowjob.


Or, maybe the authority of the President includes that sort of thing, as well as more benign things like intelligence intercepts of foreign communications.
2.13.2006 5:43pm
Kazinski:
Just when I thought this thread generated into a John Yoo snark fest, Freder added some valuable insight. Thank you Freder for explaining why the U.S. will never ratify the War Crime Tribunal treaty.
2.13.2006 6:57pm
AlanDownunder (mail):
Huggy:

Everyone in this tread does agree that a war is going on. Can't have a war criminal without a war. -grin-

-grin- Only reason they say there's a war is so they can maintain that they aren't just plain criminals (FISA, Padilla).

There were actual wars with actual war crimes at places like Abu Ghraib, Bagram &Fallujah, but the GWOT has proved in other places (homeland USA, Gitmo, rendition locales) to be as much an excuse for ordinary crime as an enhancement of defense capability.
2.13.2006 8:22pm
Freder Frederson (mail):
Yeah, I get that you think your view of the binding nature of international law on the U.S. is obviously correct, and anyone who disagrees must be a buffoon or an incompetent lawyer.

Are you saying that the U.S. is only bound by its own standards of morality and law and that there is no international law or standards by which it can be bound. That if something is constitutionally permissable, then there is absolutely no legitimate forum or claim that it is illegal and punishable under law. I know that is a very fashionable position among the right wing but how is that defensable by anyone who believes in the rule of law? Carried to its logical conclusion, the law ceases to exist, and becomes merely, might makes right, since our only claim to not be subject to international law is that no country is capable of invading us and arresting and trying the president like we did Saddam.
2.13.2006 9:40pm
Kazinski:
Freder,
So if a prohibition on racist or anti-gay speach becomes international law, either explicitly or through interpretation, does that override the first amendment?
2.14.2006 12:37am
Katherine (mail):
Some commenters here don't seem to be aware that the War Crimes Act and the Anti-Torture Statute are federal criminal statutes.
2.14.2006 12:50am
Bob Loblaw (www):

Shame on Yoo.
I agree, both in substance and "best line in thread".
2.14.2006 1:22am
Freder Frederson (mail):
So if a prohibition on racist or anti-gay speach becomes international law, either explicitly or through interpretation, does that override the first amendment?

Of course not. Crimes against humanity are a special class of international law that prohibit actions that are so abhorrent that they transcend any national law. They justify what would be otherwise illegal acts to prevent them (e.g., waging aggressive war against a sovereign nation in the case of genocide).
2.14.2006 7:34am
StatBabe (mail):
It's interesting to me that Freder Frederson manages to garner so much vitriol from those on the right for correctly demonstrating that there are international codes of justice which are every bit as important (if not more so in cases of international agreements, etc.) as any point of constitutional law.

What I find amazing is that so many are apparently ignorant of the particulars of the Nuremberg trials, especially the culpability of judges and attorneys who participated in prosecuting and trying cases based on laws against humanity--to wit, laws requiring that Jews be treated as sub-human. In fact, in the most famous movie on the subject (Judgment at Nuremberg), the principle defendent was a German judge (played by Burt Lancaster) who was tried and convicted of war crimes for upholding the law against fraternization between Aryans and Jews. To demonstrate how far criminal culpability extends with a national criminal conspiracy like the Nazis, recall that Wilhelm Keitel was convicted and sentenced to hanging for helping to plan to invasion of the Soviet Union (although he was personally opposed to such an action) and was merely aware of plans to rid Poland of all Jews. If such a peripheral role carries a death penalty with it, it seems to me that it is not a stretch in the least to assert that attorneys as agents of the federal government are no less culpable for the war crimes that are ultimately committed as a result of their opinions and advice on the subject.

And of course, there seem to be some here whose only desire appears to be to muddy up the issue of "war crimes" and further distract from the central premise of this thread (Yoo's whoredom to partisan interests) by positing either ridiculous claims or absurd questions such as the following:

So if a prohibition on racist or anti-gay speach becomes international law, either explicitly or through interpretation, does that override the first amendment?

That question implies that there is some global legislative body that dreams up and enacts international law! Normally, I would read that sort of question as satire, but given that several of the posters on this thread have made similarly unenlightened remarks, I tend to believe that the author might actually be serious in posing the question! If so, Kasinsky, I suggest that you acquaint yourself with what constitutes "international law". Then you may understand why I would normally take such a question to be political satire.
2.14.2006 8:08am