– George Bernard Shaw
Only in this case, it’s not merely scorn on my part, it’s truly the inability to find any other response which seems appropriate, except to repeat what I’ve heard here on this little out-of-the-way blog, and hope others see/read it. Beyond that, I do not trust myself to speak.
Late Tuesday, due to an ACLU lawsuit, the 2002 memo which was written by John Yoo, a lawyer in the Justice Department, at the request of Vice-President Dick Cheney’s chief legal counsel, David Addington, was released. Remember, as you read and hear what follows, that were it not for this ACLU suit, this previously-classified document would never have seen the light of day at all.
The document itself can be read in two parts, here (part 1) and here (part 2). Be warned; that’s all I’ll say. For although usually, legal documents are best used by non-lawyers as substitutes for Lunesta or Ambien, I’m betting this one won’t put you to sleep. It sure didn’t have that effect on me. Instead, it reduced me – literally – to the only response I seem capable of, even now: stunned silence. Because what it contained is quite literally a conscious effort on the part of an attorney in the employ of the United States Department of Justice, to provide legal grounds for the President of the United States – and, at his order, any member of the executive branch, including the Armed Forces and any part of the US intelligence apparatus – to ignore all international laws regarding treatment of prisoners (including treaties to which the United States is a signatory), and all US laws or acts of Congress. I’ll let Mr. Yoo explain it (from the memo):
If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network. In that case, we believe that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.
Yoo goes on, shortly after the above passage:
For the foregoing reasons, we conclude that the Fifth and Eighth Amendments do not extend to alien enemy combatants held abroad.
If you’re not a lawyer, and a little rusty on your Bill Of Rights particulars, the Fifth Amendment to the Constitution is the more-famous of the two, the one which prevents self-incrimination. It’s the one famously used by criminals who are famously guilty. Think Al Capone. But, under US law, you are not required to be a witness against yourself. Yoo says this doesn’t apply to terror suspects held overseas. However, it’s also the one which says that you cannot be deprived of “life, liberty or property” without due process of law (this would prevent indefinite detention, along with the Fourth Amendment. But the Eighth Amendment may be a little harder for us non-lawyers to remember. The primary reason Yoo references it here is because it’s the amendment which states:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Got it? The Constitutional prohibition against cruel and unusual punishment – i.e: torture – doesn’t apply, in Yoo’s requested-by-the-Vice-President opinion, in any case of terror suspects held overseas. Such as at, say, Gitmo. Or Abu Ghraib. Or Bagram. Or Camp Bucca. You get the idea.
Think I’m overreacting, or reading it too broadly? Think that this was just one of many opinions that the President, the Pentagon and the Attorney General received, in the course of figuring out how to respond to this dangerous and novel situation, while still preserving both Americans’ liberties and America’s reputation as the world leader in human rights protections? Well, I certainly hoped that was the case, too: I don’t want that to be true. And, in truth, they probably did receive multiple opinions. But, given the record of what has unfolded, coupled with the fact that Cheney, through David Addington, specifically requested this opinion, it seems clear that this opinion is the one which held sway, and gave them the legal fig-leaf for authorizing not only waterboarding of suspects in US custody, but who know what else that we’ve not even heard about yet? Still have your doubts? Then I’ll let Mr. Yoo answer them, again. This is where my jaw officially hit the floor. It’s a short (17 seconds) audio recording made of a debate between a human rights lawyer named Doug Cassel and Mr. Yoo himself, in which Cassel asks for clarification of exactly this point. The first voice is Cassel’s, the reply is Yoo’s:
The audio’s a little muddy, so here’s the transcript:
CASSEL: If the President deems that he’s got to torture somebody, including by crushing the testicles of that person’s child, there is no law that can stop him?
YOO: No treaty.
CASSEL: No, and….and also no law by Congress, that’s what you wrote in your 2002 memo.
YOO: I think it depends on why the President thinks he needs to do that.
And that, right there, friends, is where I lost the capacity for words to articulate my response, other than to simply repeat what I’ve heard and read. I do not recognize my country any longer, and I can’t help but think of the words of Thomas Jefferson when he said “I tremble for my country when I reflect that God is Just.” As someone who’s never felt the warm glow of belief that there’s anyone or anything out there guiding the light at the end of the tunnel, I hope for all our sakes that if there is a God judging our behavior towards each other, that mercy is among the prime qualities of that God.