WHITEWASHING BUSH TORTURE CZAR JOHN YOO

by Nat Hentoff
from HUSTLER Magazine August 2010

THE WAR ON TERROR CONTINUES TO GIVE THE PRESIDENT UNBRIDLED POWERS THAT TURN THE RULE OF LAW UPSIDE DOWN.

Authored by John Yoo in the Justice Department's Office of Legal Counsel in 2002, the infamous "torture memos" gave the Bush-Cheney Administration precisely what it demanded: legal cover for the unbounded "coercive interrogation" of suspected terrorists at Abu Ghraib and the CIA's secret prisons ("black sites"), as well as for "renditions," whereby other such suspects were whisked off to countries known for torturing their prisoners.

This shameful U.S. "torture policy" led to deep resentment from our allies and a unanimous, bipartisan Senate Intelligence Committee report in 2008, which declared that these "coercive interrogations" provided al-Qaeda and other terrorist groups a powerful recruiting tool.

Accordingly, there was keen anticipation in this country and abroad when the Justice Department's Office of Professional Responsibility embarked on a four-year investigation of the possible lawlessness of John Yoo and his accomplice in the Office of Legal Counsel, Jay Bybee.

Before the final version of the OPR report was released, leaks revealed that the investigation initially found that then-Deputy Attorney General Yoo had "committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective and candid legal advice." (Bybee was similarly censured.)

This ruling, once issued and sent to the bar associations in the states where Yoo and Bybee were licensed, could have led to their disbarment and possible prosecution. But suddenly both were spared punishment by an edict from David Margolis, a longtime high-level associate deputy attorney general. He is a Justice Department expert in—I kid you not—"legal ethics."

Margolis countermanded the OPR investigators, concluding that Yoo and Bybee (the latter promoted in 2003 to a federal judgeship) had used just "poor judgment." Naughty, naughty. Then and now, Yoo's go-ahead on torture was based on his conviction that the President— commander in chief in the war against terrorism— had limitless power to keep us safe. For instance, when an OPR investigator asked Yoo if the President could order the extermination of "a village of civilians," his answer was "Sure."

There is much more in this extensive Office of Professional Responsibility report than references to Yoo and Bybee. It makes, in detail, a powerful case for a necessary Congressional— or independent—investigation on the highest accountability for the torture policy all the way up the chain of command to the White House.

Dick Cheney, the proponent as Vice President of what he called "the dark side" of our survival battle against terrorism, actually said to an ABC News interviewer on February 14 of this year— as he defended John Yoo—"I thought it was important…to stand up and defend those people who'd done what we asked them to do."

Yoo and Bybee were indeed acting on orders from on high. OPR investigators were told by John Bellinger—who was a lawyer at the National Security Council while Yoo was at the Justice Department—that Yoo was under tremendous pressure to come up with an answer that would justify continuing the interrogation program.

As I've previously reported, the CIA was very worried that its interrogators might be in danger of being prosecuted, and Yoo had urgently asked for an Office of Legal Counsel get-out-of-jail pass. Great pressures on Yoo had also come from Dick Cheney's insistently hardline legal counsel, David Addington. Testifying before the House Judiciary Committee in 2008, Addington—defending Yoo—said significantly, "This is what his client asked him to do."

Yoo's client was George W. Bush, along with those he commanded in the executive branch, including then-Attorney General John Ashcroft. Now that we and the world know who was ultimately responsible for violating our own Torture Act, the international Covenant Against Torture, the Geneva Conventions, etc., shouldn't we know whether any of them will be investigated to show that we are indeed a nation of laws, not men? As of this writing, there have been pledges of investigations by chairmen of the Democratically controlled House and Senate Judiciary Committees, but nothing has started. And President Obama, who has continued some of the Bush-Cheney practices, is opposed to looking back lest he be tracked.

As for the Republicans, the influential Senator John Cornyn of Texas, an active member of the Judiciary Committee, said that Yoo and Bybee deserve "the thanks of a grateful nation for their service." Huh? Cornyn is only angry at "the irreparable damage to their reputations." How about our reputations? The triumphant John Yoo, in a prominent Wall Street Journal article titled "My Gift to President Obama," exulted: "Barack Obama may not realize it, but I may have just helped save his Presidency. How? By winning a drawn-out fight to protect his powers as commander in chief to wage war and keep Americans safe. … I did not do this to win any popularity contests. … I did it to help our President—President Obama, not Bush." I expect President Obama is grateful.

After leaving the Oval Office, Richard Nixon said: "When the President does it, that means that it is not illegal." Nixon ultimately had to resign for what he did. But if Obama and future Presidents continue to operate under the Bush- Cheney-Yoo doctrine that there are no boundaries to what our commanders in chief can unilaterally do to preserve our safety and our values, Nixon's assurances that future Presidents are impregnably above the law will be validated as long as there are threats from terrorism. With the Constitution's separation of powers discarded as obsolete, our individual liberties are being imperiled, not only due to terrorists but also at the hands of our own leaders. Will this still be America?

Nat Hentoff is a historian of the Constitution, a jazz critic and a columnist for the Village Voice and Free Inquiry. His incisive books include The First Freedom: The Tumultuous History of Free Speech in America ; Living the Bill of Rights ; and the forthcoming Is This America?