In Defense of John Yoo

John Yoo should not be fired from his job at a school of law in the USA for being accused of a crime in Spain. He should not be fired or disbarred for writing memos that define and delineate torture. In fact, John Yoo deserves the support of every person who respects rule of law and the open exchange of ideas in a free society.

I would not want my daughter to marry John Yoo. He does not seem like a nice guy. Federalists seldom are. But that's not the point.

John Yoo is being tried in the press by self-appointed protesters who display a fundamental disrespect for rule of law and the exchange of ideas in an open society. The man has done nothing wrong under the law. If you find his work morally reprehensible -- and you may; I don't like it -- then shun him. Ignore his work. Or, write and speak against it. Show why his opinions are wrong.

The matter at hand is John Yoo. However, his work came to public attention by way of protestors such as this writer:

"I live and work in Orange, two blocks away from the Chapman Law School. I'm amazed by the story about this man and that he is allowed to teach in my town. I know the University President Jim Doti and plan on emailing him next. Please let me know if you plan any demonstrations against this guy because I would be happy to walk up the street and participate. This is not a matter of "freedom of speech", this man has done a huge disservice to me and my country. I want him out of my city."

The writer is not a student, faculty or staff employee at Chapman. The writer claims to have special privilege with the CEO of the school. The writer claims to own the city. Claiming a "disservice" by John Yoo, he wants not appropriate restoration for his highly putative losses, but he wants, instead, retributive punishment against John Yoo: loss of employment.

I confidently predict the counterfactual case that if Big Box shelf stocker John Yoo had robbed someone on the street, calling for his being fired ahead of his being tried and convicted would drive the writer of that protest letter to the sense of appropriate moral outrage he seems to lack in the real world. The outrage is not that John Yoo teaches law, but that others want him fired.

Despite what that quoted writer above claims, this is indeed a matter of freedom of speech -- and rule of law -- and partisan politics. John Yoo was nothing more than a lawyer who advised his clients based on his best judgment. I submit that John Yoo has been singled out by a mob of Democratic Party hooligans specifically in service to partisan politics.

President Clinton 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 Clinton has accelerated the disturbing trends in foreign policy that undermine notions of democratic accountability and respect for the rule of law.
"Chapter 12: The Imperial President Abroad," by John Yoo. Page 159 in The Rule of Law in the Wake of Clinton edited by Roger Pilon, published by the Cato Institute in 2000. ISBN 1930865031.
http://en.wikipedia.org/wiki/John_Yoo

John Yoo flourishes the same basic credentials as many other accomplished politicos. The only differences between him and President Obama or Sen. John Kerry or ten thousand others in Washington D.C. is the choices he made in pursuing a career as a technical expert, as opposed to being a candidate for public office.

graduated with a B.A., summa cum laude in American history from Harvard University in 1989
Yale Law School in 1992.
Clerked for United States Supreme Court Justice Clarence Thomas
Clerked for U.S. Court of Appeals for the D.C. Circuit Judge Laurence Silberman.
From 1995 to 1996, general counsel for the Senate Judiciary Committee.
http://en.wikipedia.org/wiki/John_Yoo

The real question here is not whether or not the USA should have invaded Afghanistan, captured Taliban fighters, detained them offshore, and then tortured them. That issue is wholly independent of John Yoo's inherent, inalienable right to publish an opinion ... whether he agrees with it or not, whether he likes his client or not, whether he subscribes to the lifestyle of his client or not... The question here is whether he should be fired from his job because a judge in Spain wants to investigate him. (As of this writing, the status of that investigation remains questionable: http://news.bbc.co.uk/2/hi/europe/8002262.stm) In closing, I point out that apparently, in Spain, judges are also prosecutors, or at least investigators -- a common situation in much of the world. We who enjoy English traditions take them for granted. In John Locke's Second Treatise, the branches of government are defined as the Executive, Legislative and Diplomatic. Locke did not perceive the courts as a branch of government, but as institutions of the people to check the power of government: the king's men must come first to a court of competent jurisdiction to obtain a warrant before commiting any act under law. Apparently, Spain has a different tradition. The Inquisition comes to mind.

(Edited by Michael E. Marotta on 4/21, 5:13am)

Post 1

Tuesday, April 21, 2009 - 7:53am

For one, I think of the Spanish court action as little more than a political stunt, that should not be respected.

I earlier opined that water-boarding is less offensive to me than allowing an act of terrorism to be carried out undetected. Not having read John Woo's legal opinion, I cannot say what logic he used, or how much he may have rationalized his conclusions. However, I still stand by the position that such forms of torture may still be considered a justifiable defense of our rights.

My greatest concern, and it is a big concern, is how well our agents in this undertaking first determine the guilt of the party to be interrogated. This should not be allowed without the dead certainty of all concerned that the prisoner is both culpable and knowledgeable of terrorist acts.

jt

Post 2

Tuesday, April 21, 2009 - 11:39am

The question is whether Yoo is a criminal.

Jordan

Post 3

Tuesday, April 21, 2009 - 7:43pm

Are the only criminals those who actually pull the trigger? If I pay someone to kill you, is that person solely liable? If I advise someone on how to get away with murder, knowing that it is not just a hypothetical, then where are the limits of responsibility? Reportedly, perhaps at least eleven people who were tortured under the sanctions provided by the Yoo memos actually died as a consequence. If George Bush, as chief executive, orders the implementation of a policy that results in the illegal deaths of people, knowing that this is a likely outcome, then is he not actually responsible, because some CIA flunky did the actual deed? If a judge signs off on a legal document advising Bush that he and his people will be immune from criminal consequences, is that judge also immune?

When the people who sign off on and thereby enable torture and murder escape the moral/legal consequences, we have a problem. I'm not in favor of incarcerating anyone who is not a clear danger. Restitution to the victims is vastly preferable in terms of justice. At what point, however, does the moral onus on Chapman U. to take a position consistent with their job as paid private educators come into play here?

I admit that this is a position on which I have wavered back and forth, because the very error of assuming guilt without proper legal review or hearing that applies to the Guantanemo prisoners also applies to John Yoo. However, we have his memos. He apparently admits that he authored them. He was paid to provide them to the Bush Administration, and they were used and pretty clearly designed for the purpose of getting around those very fundamental legal requirements.

The extent to which he can actually be held accountable for the crimes that appear to have been committed on the basis of those memos is one thing. The obligation of Chapman to provide a proper education, especially to its law students, is another. Would it be proper for Chapman to hire Pol Pot in order to balance the humanists in their Peace Studies program? If alumni objected, and wrote letters to the student newspaper demanding that Pol Pot be removed from his teaching position, should they be criticized in turn for a failure to respect academic independence?

If Objectivist U. hired Immanuel Kant to present his alternative to objectivist ethics, would we, the alumni be acting improperly in withholding our funding? What about those creationists? There is certainly some value in listening to opposing viewpoints on virtually any issue. However, a University that hired creationists to balance Darwinian biologists would generally be regarded as wrongheaded and irresponsible to the students who were its clients.

Universities don't just throw every opinion into the pot. We have the internet for that, after all. Instead, they build credibility, the worth of their diplomas, on their capacity to correctly identify who is qualified to teach a subject.

Post 4

Wednesday, April 22, 2009 - 4:14am

Phil,

There are certainly limits of tastefulness. However, we learned of disparate views from Universities, long before we learned anything from the internet. Certainly, even Ol' Objectivist U would present a lecture by Kant. That does not involve endorsement, it only involves true education. One cannot reject what one has never heard of, and the university setting is appropriate. Willful omission is dishonest.

Protest Yoo all you like. It is right and proper that you do so. The controversy will probably help fill seats in his lectures.

The contents of Yoo's memos are the only pertinent evidence worthy of examination for any question of law.

jt

Post 5

Wednesday, April 22, 2009 - 7:48am

Hell we should kill the rest of them - we have every right to - they were non-uniformed enemy combatants and subject to immediate execution as per the Geneva convention.

You are advocating SELF SACRIFICE - as in - it is perfectly Ok to die so as not to torture anyone. This is the same as the pacifist, who deplores violence even in self-defense.

Post 6

Wednesday, April 22, 2009 - 12:26pm

In the Community Currency topic, Kurt Eichert posted a link to this story about a Nevada businessman who paid his employees in US Treasury $50 Eagles.
http://www.liberty-watch.com/volume03/issue08/coverstory.php

Down near the middle is a reference to memo-writer Jay Bybee.

Hansen, under the good faith belief defense, was able to present evidence that his specific client, Alex Loglia, who performed research work for Kahre, did not have intent to commit tax crimes. This interesting twist allowed jurors to still hear the argument that Kahre was justified to pay workers based on the face value of the coins. The U.S. Supreme Court had long before ruled, in the Cheek case, that a good defense in a tax-evasion case is a person had good faith in not following certain tax laws.

“The Supreme Court said, if they don’t have criminal intent, then they are not guilty of tax evasion,” Hansen explained. “That doesn’t mean you don’t have to pay the tax, but it means you didn’t commit a crime and won’t go to jail for a felony.”

In 2005, Loglia penned a paper that earned him an ‘A’ from his law school professor Jay Bybee (who just happens to also be a 9th Circuit judge) on the gold-coin issue and the separation of powers. His paper took the position that, under Article 1, Section 8, Clause 5 of the Constitution, Congress alone had the power to coin money and set its value.

Loglia’s position was that the judicial branch does not have this power.

(ahh.... but the Executive Branch would....(:-))

Post 7

Wednesday, April 22, 2009 - 4:09pm

Enjoyed the article. tks!

jt

Post 8

Wednesday, April 22, 2009 - 6:30pm

Thursday, April 23, 2009 - 5:46am

Phil,

It seems that you and Kurt are talking about two different sets of people. His presumption is that their culpability has been reasonably ascertained beforehand. Yours is that a lynch mob mentality exists, and that no effort is taken to ascertain culpability. His assessment may be off a little, but yours seems extremely off. Rather than make any assumptions, I think it would be better to agree first upon what rules should apply when determining who is an enemy combatant. Then one can go on to debate the issue of CIA style torture - which is clearly more tame that that found in other parts of the world.

jt

Post 10

Thursday, April 23, 2009 - 5:58am

I'm not really following this post, but felt I had to comment, considering others are using selective data and misrepresentation to make unspoken bias look more plausible.

Post 8

Wednesday, April 22 - 6:30pm

Kurt: You might carry a copy of that post with you if you ever travel to the Middle East - "they were non-uniformed enemy combatants and subject to immediate execution as per the Geneva convention." Then if there's some local fracus and you happen to be conveniently close, you can present it to the arresting officers who are convinced - because some taxi driver told them - that you are a secret CIA agent and therefore should be shot out of hand. It might save you from being tortured, anyway.

This in fact does happen. All the time. Actually its pretty rare for islamists to go this far for a rationalization. Usually its just "Driving while American" or "I see you and you deserve to die for it."

"A local Los Angeles reporter actually had this happen to him in Iraq. He's from Queens, I believe, and rather dark skinned, and heavy, and could pass for a Saudi. When his cab got pulled over at a U.S. checkpoint in Baghdad, the driver, either out of panic, malice, or desire for a reward, told the U.S. Army soldiers that he - the U.S. born reporter - was actually a Saudi Al Quida agent, at which point he had about a dozen automatic weapons aimed at him, and was not treated very nice at all, until he finally had a chance to open his mouth, as they were screaming "SHUT THE F*** UP! GET ON THE F**** GROUND, A***H****, while jamming a weapon into his back, finger on the trigger."

Give me the rest of the story, Phil. Is that reporter dead? I doubt it, because if he was shot summarily then that would have supported your bias. So what you're saying is that American soldiers risked their lives in order to NOT kill an innocent man in a warzone. Who, by the way, was not displaying any credentials. You are aware that the press has credentials to prevent situations like this. As to the use of curse words while in a warzone, are you even serious that this is relevent? If you think putting someone erroneously ID'd as an enemy combatant on the ground at gunpoint until his identity can be verified is an unwarranted response I would like to suggest a little exercise for you. Go stand in a street somewhere while about 6000 people walk past you, in a region where there is a known habit of suicide bombing under cover of civilian attire. Wear obvious clothing identifying you as a target. Do this everyday for a few months. Then see how you react when someone walks up to you and points to someone within 5 feet and says "He's the one thats going to try to kill you." Good luck displaying the self control that the soldiers in your example did. Oh and by the way, your example sucks. Guantanemo isn't full of los angeles reporters or any other reporters.

So far, the vast majority of the prisoners in Guantanemo and the other prisons involved in Iraq and elsewhere around the globe, who were siezed by the U.S. and then incarcerated for years without evidence or a hearing or charges, were not siezed on the battlefield carrying weapons or acting aggressively toward U.S. troops.

Really? I wonder why a significant number that we let go later are found to be associated with terrorist ops after release. You would acknowledge that we let some go right? That there is in fact a process to clearing this guys? I guess we just let the bad ones out on purpose and everyone left in guantanamo is innocent?

And, by the way, would you want to be tried and convicted as a combattant because you had a weapon? Ever hear of the 2nd Amendment?

Since when did US civil legislation or law apply to wartime operations?

Is every person in possession of a weapon an anti-American Islamic terrorist?

This is just willfully stupid. You are dropping context. America is not the middle east.

Could it possibly be that some of them had the weapon because they were protecting themselves or their families in a combat zone?

If you don't like how its done, you volunteer to check them. Give people in a warzone as much of a benefit of a doubt as you'd like. You'll only misjudge once. Prehaps if they were so interested in protection they wouldn't be living directly beside terrorist safehouses and the like. Or here's and idea, tell the authorities or US forces. You are aware that we do not randomly hit houses and incarcerate people.

Since there were never any real hearings or witnesses, I guess we should just shoot them, to save ourselves the trouble of sorting out the guilty from the innocent.

This doesn't even need to be addressed. We don't do this. Some people are cleared and released based on some sort of process. Many more are released at the scene on the judgement of US forces. Prehaps you should stop saving yourself the trouble of sorting out the guilty from the innocent among your own defenders.

Post 11

Thursday, April 23, 2009 - 6:17am