Posted on 01/29/2009 2:19:20 AM PST by markomalley
When this newspaper printed a cover story last spring saying UC Berkeley should fire Boalt law professor John Yoo and that he should be prosecuted for war crimes, the chances of either of those things actually happening may have seemed farfetched. After all, university officials had claimed that Yoo's work for the Bush administration — authorizing torture and warrantless wiretapping — was protected by academic freedom. Moreover, neither the Obama nor the Clinton campaigns expressed an interest at the time in investigating the outgoing administration. But several recent developments have started to shift opinions about whether Bush and company should receive a free pass. In fact, at least one prominent legal scholar believes that if there is to be a war crimes inquiry, one of the most likely targets will be a tenured professor who lives in the Berkeley hills.
"I think it's moved from possible to very likely," said Scott Horton, a lecturer at Columbia University law school and writer for Harper's, who has both studied and reported extensively on the Bush administration's record of torturing prisoners and monitoring Americans' phone calls without a warrant. "And of all the people involved, the most vulnerable are the lawyers, including John Yoo." Horton pointed to the Nuremberg trials after World War II as a precedent. In the late 1940s, several high-ranking Nazi lawyers were prosecuted, convicted, and sent to prison for their roles in facilitating war crimes, including torturing prisoners.
But why would Yoo be a more likely target than George W. Bush, Dick Cheney, or Donald Rumsfeld? It's clear now that they were the ones who ordered prisoners to be tortured at Guantanamo Bay prison and elsewhere. Or what about the CIA and military interrogators who waterboarded prisoners or deprived them of sleep and exposed them to cold for prolonged periods? Aren't they more responsible than Yoo, whose work consisted of writing legal opinions from the comfort of his Department of Justice office in Washington, DC?
The answer to those questions is "yes." Bush, Cheney, Rumsfeld, and the actual torturers were more responsible than Yoo. But because of vagaries in US law, they appear to be a tougher target than the University of California law professor, at least for domestic prosecutions. That may be unfortunate, but it's not as if Yoo's hands are clean. Bush and company could not have ordered prisoners to be tortured, nor could CIA agents and military interrogators have carried out those orders, had it not been for Yoo. It was his two legal opinions, now known as the "Torture Memos," that authorized cruel and harsh interrogations that had previously been defined as torture, and thus illegal under US and international law.
So how did the conventional wisdom start to shift on war crimes investigations? Horton and others, including Glenn Greenwald, a legal scholar and blogger for Salon.com, have pointed to several recent events. First, there was the swearing in of Barack Obama. Last week, the new president signed executive orders outlawing torture that had been authorized by Yoo's legal opinions and ordering the closure of Guantanamo and CIA "black-site" prisons.
Obama also declared that the "rule of law" will be a "touchstone" of his administration. Although Obama has indicated he is not intent on launching war crimes investigations of Bush administration officials, he has not ruled them out. Nor has his pick for attorney general, Eric Holder. Moreover, Obama would be hard-pressed to claim to the world that America now once again abides by the "rule of law," while simultaneously turning a blind eye to top political leaders who flagrantly broke it.
At this point, any serious debate over whether the Bush administration engaged in war crimes appears to be over. In mid-January, Susan Crawford, a Bush administration official in charge of prosecuting Guantanamo prisoners, told Bob Woodward of the Washington Post that US interrogators had "torture(d)" at least one suspected Al Qaeda member by depriving him of sleep and exposing him to cold for prolonged periods. Moreover, there were the revelations last year that Bush and Cheney both personally authorized prisoners to be waterboarded. Waterboarding has been considered torture going back to the Spanish Inquisition. In fact, Holder pointed out during his confirmation hearing earlier this month that the US government prosecuted American soldiers who waterboarded prisoners during the Vietnam War. Holder also declared unequivocally that "waterboarding is torture."
The nation's appetite for war crimes investigations also appears to have grown. A Washington Post poll reported last week that a majority of Americans, by a margin of 50 to 47 percent, believe that the Obama administration should investigate whether the Bush administration's treatment of detainees was illegal. In addition, House Speaker Nancy Pelosi, Senator Carl Levin, and other prominent Democrats in recent weeks have indicated said that Congress plans to investigate the Bush administration on a variety of fronts during the coming months. Levin even has urged Holder to appoint a special prosecutor.
Last week, some Senate Republicans held up the Holder nomination over concerns that the Department of Justice would target CIA and military interrogators. But that seems unlikely. The reason is that those interrogators could point to Yoo's memos as justification for their actions. CIA agents once referred to one of the memos as the "Golden Shield" (see "The Torture Professor," May 14, 2008). In addition, the torturers were effectively immunized from prosecution when Congress approved the Military Commissions Act in 2006 (Obama voted against it).
Although that 2006 law doesn't apply to Bush, Cheney, and Rumsfeld, they too can point to Yoo's memos as justification for ordering torture. In fact, they already have. Bush has said repeatedly that his decisions relied on Department of Justice legal opinions (in other words, Yoo's work). Horton said, however, that Bush and company could be vulnerable because recent revelations have shown that the United States began torturing prisoners before Yoo completed his first torture memo in August 2002. That means top officials may not be able to claim that they relied on it to justify their actions. Those revelations also could expose Yoo to charges of a criminal conspiracy if he wrote the memos in order to justify or cover-up existing crimes. Torture is a war crime in the United States under several laws, including the Convention Against Torture, an international treaty brokered by the Reagan administration.
But Yoo is more vulnerable than Bush, Cheney, and Rumsfeld because while his legal memos might immunize them, they do not immunize him. Nor is he protected by the 2006 Military Commissions Act. In short, others may have some get-out-of-jail-free cards, but not Yoo. Moreover, arguments that he was merely fulfilling his duty as a government lawyer or that he did not know that his legal opinions would result in torture are undermined by the fact that Nazi lawyers made similar assertions at the Nuremberg trials and lost. In addition, it's clear that Yoo knew he was authorizing torture. After all, he has acknowledged changing the definition of torture to allow harsh techniques that had long been deemed to be torture, and thus illegal, including waterboarding.
So where does that leave UC Berkeley? Boalt Law School Dean Christopher Edley Jr., who was a member of the Obama transition team, has essentially said that Yoo's job is safe unless he's convicted of a crime. But as this newspaper has already reported, Edley is wrong about that. The University of California has previously fired tenured professors who were not convicted of crimes. At the very least, the university should launch a thorough investigation into Yoo, including whether his actions merit disbarment. In addition, any assertion that academic freedom justifies his authorization of war crimes is ethically bankrupt. The university also should report its findings to the public. We all have a right to know why a public university, supported by our tax dollars, allows a man like Yoo to continue to teach constitutional and international law to the next generation of lawyers. |
Terrorists have NO rights under the Geneva Convention, therefore torturing them is NOT a War Crime.
All of the useful idiots screaming about torture at Gitmo can't name a single incident of torture, but they "know" it happened. To quote Ronald Reagan "It isn't that our liberal friends are stupid. It's just that they "know" so much that isn't true".
It's interesting how this "torture" thing has become the left's pornography these days.
They want to sue Bush for not coming out on 9/11 and saying "Fellow Americans, we deserve this. We are capitalist swine, and will immediately dismantle our military, and put all the money into education and healthcare for all the peoples of the world, including our own poor. Greed will be outlawed, and Haliburton will be turned into a prison."
The left in this country are ashamed that America is what it is. They believe we are citizens of the world first above all, and any expression that we are different, better, exceptional, is their idea of a sin.
They are waving flags and proud now because they suspect, correctly I believe, that Obama shares these beliefs.
But I also suspect that since winning the election and receiving daily security briefings, Obama has realized the gravity of the position he's in. He thought he could be Jimmy Carter with talent, Al Gore with panache. He wishes he could do all that he thought was good while a community organizer while of course maintaining his rich man's lifestyle.
Since coming into office he has rushed to get some scores on the board, hoping that as one new initiative follows another people will get the sense he is doing SOMEthing because of the flurry of activity.
But the whole "war crimes" thing is not going away. The left is focused on that "like a laser," and Obama is going to have to deal with it to appease that core constituency, the ACORN/Che!/Fascist Amerikkka bunch. He believes he can pile on the education money, give freebies to the poor, and that will appease them.
As this article shows, nothing will satisfy these people but having those who placed American security first prosecuted for war crimes.
Now comes the left attempting this time to shut down the bar. What's next, the prosecution of Weathermen on television for giving a politically incorrect forecast? What about doctors who diagnose AIDS, can we have that in a politically correct society? This is nothing less than an attempt to apply the doctrine of hate crimes to undermine the entire legal system.
I have been postingfor some time now that I think the key for conservatism to mount a comeback is the defense of liberty.
It’s always amazing to me how quickly certain critics attack Christian prayers in public, etc., and in the pre-9/11 world went on incessantly about how any acceptance of Christianity in the public arena is a slippery slope. Oddly, in the post-9/11 world this criticism wasn’t replaced by similar caution where Islam is concerned, but an increased DEFENSE of Islam. So much for the fear of religion in the public sphere—in truth it was fear of Christianity only.
I agree that the defense of liberty could be the Plymouth Rock of a Republican comeback. The silver lining to this ridiculous bailout bill is that in one stroke the Democrats have seized the title of Most Fiscally Irresponsible back from the Republicans in record time. The Republicans need to criticize this as a money grab that takes power away from the taxpayer, and link taxes with individual liberty— personal wealth is the key to individual liberty in a capitalistic system.
I hope the surprising suddenness with which the dems have initiated this financial blitzkreig will surprise the Republicans into a reversion to what should be their basic principles. I hope this is the case, because the dems are instituting their liberal wet dreams as policy with amazing speed. This is no time for the Republicans to try to be nice with people who are trying to cement their power position.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.