As Jane Mayer reported two years ago in The New Yorker -- in which she quoted former Navy General Counsel Alberto Mora as saying that "the memo espoused an extreme and virtually unlimited theory of the extent of the President's Commander-in-Chief authority" -- it was precisely Yoo's torture-justifying theories, ultimately endorsed by Donald Rumsfeld, that were communicated to Gen. Geoffrey Miller, the commander of both Guantanamo and Abu Ghraib at the time of the most severe detainee abuses (the ones that are known).
It is not, of course, news that the Bush administration adopted (and still embraces) legal theories which vest the President with literally unlimited power, including the power to break our laws. There are, though, several points worth noting as a result of the disclosure of this Memorandum:
(1) The fact that John Yoo is a Professor of Law at Berkeley and is treated as a respectable, serious expert by our media institutions, reflects the complete destruction over the last eight years of whatever moral authority the United States possessed. Comporting with long-held stereotypes of two-bit tyrannies, we're now a country that literally exempts our highest political officials from the rule of law, and have decided that there should be no consequences when they commit serious felonies.
John Yoo's Memorandum, as intended, directly led to -- caused -- a whole series of war crimes at both Guantanamo and in Iraq. The reason such a relatively low-level DOJ official was able to issue such influential and extraordinary opinions was because he was working directly with, and at the behest of, the two most important legal officials in the administration: George Bush's White House counsel, Alberto Gonzales, and Dick Cheney's counsel (and current Chief of Staff) David Addington. Together, they deliberately created and authorized a regime of torture and other brutal interrogation methods that are, by all measures, very serious war crimes.
If writing memoranda authorizing torture -- actions which then directly lead to the systematic commission of torture -- doesn't make one a war criminal in the U.S., what does? Here is what John Yoo is and what he did:
"It depends on why the President thinks he needs to do that." Yoo wasn't just a law professor theorizing about the legalization of torture. He was a government official who, in concert with other government officials, set out to enable a brutal and systematic torture regime, and did so. If this level of depraved criminality doesn't remove one from the realm of respectability and mainstream seriousness -- if not result in war crimes prosecution -- then nothing does.
That John Yoo is a full professor at one of the country's most prestigious law schools, and a welcomed expert on our newspaper's Op-Ed pages and television news programs, speaks volumes about what our country has become. We sure did take care of that despicable Pvt. Lyndie England, though, because we don't tolerate barbaric conduct of the type in which she engaged completely on her own.
(2) While Yoo's specific Torture Memos were ultimately rescinded by subsequent DOJ officials -- primarily Jack Goldsmith -- the underlying theories of omnipotent executive power remain largely in place. The administration continues to embrace precisely these same theories to assert that it has the power to violate a whole array of laws -- from our nation's spying and surveillance statutes to countless Congressional oversight requirements -- and to detain even U.S. citizens, detained on American soil, as "enemy combatants." So for all of the dramatic outrage that this Yoo memo will generate for a day or so, the general framework on which it rests, despite being weakened by the Supreme Court in Hamdan, is the one under which we continue to live, without much protest or objection.
(3) This incident provides yet more proof of how rancid and corrupt is the premise that as long as political appointees at the DOJ approve of certain conduct, then that conduct must be shielded from criminal prosecution. That's the premise that is being applied over and over to remove government lawbreaking from the reach of the law.
That's the central argument behind both telecom amnesty and protecting Bush officials from their surveillance felonies (it's unfair to hold them accountable for their illegal spying behavior because the DOJ said they could do it). It's the same argument that CIA Director Gen. Michael Hayden just made on Meet the Press as to why CIA interrogators should be immunized from the consequences of their illegal conduct ("when I go and tell him to do something in the shadows and point out to him it is perfectly lawful, that the Department of Justice has reviewed it . . . I need him to have confidence in that DOJ opinion").
The DOJ is not the law. They are not above the law and they do not make the law. They are merely charged with enforcing it. The fact that they assert that blatantly illegal conduct is legal does not make it so. DOJ officials, like anyone else, can violate the law and have done so not infrequently. High DOJ officials -- including Attorneys General -- have been convicted of crimes in the past and have gone to prison.
Embracing this twisted notion that the DOJ has the authority to immunize any conduct by high government officials or private actors from the reach of the law is a recipe for inevitable lawlessness. It enables the President to break the law, or authorize lawbreaking, simply by having his political appointees at DOJ -- including ideologues like John Yoo -- declare that he can do it. As these incidents ought to demonstrate rather vividly, the mere fact that Bush officials at the DOJ declare something to be legal cannot provide license to break the law with impunity.
(4) Since the Nuremberg Trials, "war criminals" include not only those who directly apply the criminal violence and other forms of brutality, but also government officials who authorized it and military officials who oversaw it. Ironically, the Bush administration itself argued in the 2006 case of Hamdan -- when they sought to prosecute as a "war criminal" a Guantanamo detainee whom they allege was a driver for Osama bin Laden -- that one is guilty of war crimes not merely by directly violating the laws of war, but also by participating in a conspiracy to do so.