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How to Read a War Criminal

by Douglas Anthony Cooper

Inquiring minds want to know precisely how much John Yoo was paid to offer his opinions to the Wall Street Journal. We can assume it was less than his rate at the Department of Justice’s Office of Legal Counsel, where he produced among the most toxic professional opinions in American history.

It was John Yoo, of course, who opined that the President was perfectly within his rights to have a child’s testicles crushed in the presence of the father, depending — and here’s where lawyerly nuance comes in — depending upon what the President intended by this act. There are those who would argue that the President’s intent here would be relevant only to determine the President’s culpability as a war criminal. But those people are probably not tenured at Boalt Hall, Berkeley’s prestigious law school. And those people certainly would not be paid to write an op-ed for the Wall Street Journal.The headline on the WSJ site is not shy: “The KSM Trial Will Be an Intelligence Bonanza for al Qaeda.” Here we have Professor John Yoo, legal expert, offering us a reasoned professional response to a news story: the decision to hold the trial of the terrorist Khalid Sheikh Mohammed in New York. My first impulse upon stumbling over Yoo’s piece was to do a page search for the word “torture.” My browser informed me that this word was not found in the document. I tried “enhanced interrogation.” No results. “Waterboard”? Nada. So I skipped to another news story. Nobody’s interested in John Yoo’s opinion — a confession, on the other hand, would be worth reading.

The rigorous reader in me, however, eventually returned to the op-ed page. What sort of thing does the WSJ pay good money for these days? We know that the Washington Post is willing to give William Kristol a column (for which he is presumably paid); that the New York Times flirted with this notion for a bit, before deciding that money on Kristol was ill-spent; so what do we think of the Wall Street Journal, as an institution, for upping the ante here? William Kristol may be criminally wrong, quite predictably, but he’s not precisely acriminal. How does this reflect upon the WSJ under its new management: their bold willingness to offer money and a prominent soapbox to the man responsible for providing legal cover for official war crimes?

To properly evaluate this involves, unfortunately, reading the piece itself. The text proves really quite vapid: nothing here requiring a law degree, or any particular expertise for that matter — most first-year students of political science at lesser schools than Berkeley could probably grind out an op-ed of this quality. The subtext, on the other hand, proves fascinating. I recommend this piece to anyone with a passing interest in how evil, in its fullness of banality, insinuates itself into governmental reasoning.

From the very beginning, we sense a certain pattern of thought. It was not so long ago, remember, that the Department of Justice was considered fully subordinate to a sovereign Executive-in-chief. Those nostalgic for the subservience of Alberto Gonzales will recognize Yoo’s first opinion: that the decision to move Khalid Sheikh Mohammed’s trial to Manhattan is not even partially a prosecutorial decision — it is fully a presidentialdecision. The subtext here: yes, the Department of Justice may have arrived at this decision, but that’s only because the DoJ is by definition told what to decide by the Executive. That’s how it works. (Note to Mr. Yoo: the current administration has decided to revive whimsical notions of judicial independence.)

The crux of the matter — the deepest part of John Yoo’s considered opinion — is announced in the second paragraph: this decision is “about the hard, ever-present trade-off between civil liberties and national security.”

That old chestnut. Civil liberties are all well and fine, but when it comes down to the hard decisions — crushing children’s testicles, for instance — rights are always superseded by questions of national security. The key term here is “ever-present.” Certainly, in terms of classified information, for instance, this is a constant nagging issue: the tension between the First Amendment and national security. On the other hand, the issues addressed here: the wholesale suspension of the Bill of Rights, the decision to ignore treaties enforced by the Constitution (the Geneva Conventions) — these are notever-present issues. They are, thankfully, extremely rare: Lincoln’s (very brief) suspension of habeas corpus during the Civil War, for instance, whose propriety is still debated.

What differentiates America from lesser polities is precisely this fact: that the Constitution is paramount and sacrosanct, and that any emergency deviation from the Constitution is itself an emergency, and rare. For Yoo, the state of emergency is permanent: it is an “ever-present” concern (and the permanence of the War on Terror lends respectability to this interpretation — one reason that Obama’s decision to drop the word “War” is far from mere semantics).

The political theory supporting Yoo’s cavalier approach has a quasi-reputable lineage: it came to the Bush administration via students of Leo Strauss, who himself inherited the notion from his intellectual mentor, Carl Schmitt. Unfortunately, it is simplistic to dismiss Professor Schmitt wholesale as a Nazi jurist (which he was); far less controversial figures than Leo Strauss took his ideas seriously, and still do. Nevertheless, in this context, the Schmittian argument has to be examined with extreme care: do we really want to give the Executive wide-ranging dictatorial powers, at all times,in the name of national security? (Hint: we tried that under Bush, and many other nations have tried it under much nastier sovereign leaders, and the answer is no.)

Here we are, in the second paragraph of Mr. Yoo’s opinion, and we’re already treading old and dangerous territory. The rest of the piece is an escalating alarm, concentrating suspiciously on things that, were they revealed, might compromise Yoo himself in front of a war crimes tribunal. A telling bit: “Prosecutors will be forced to reveal U.S. intelligence on KSM, the methods and sources for acquiring its information, and his relationships to fellow al Qaeda operatives.” How much of this truly concerns our friend Yoo? Properly classified information will of course be presented in camera — that sort of thing isn’t trotted out before the public. This alarmist reasoning dominated the Bush administration’s reign of secrecy: virtually everything was protected by executive privilege — even judges had to have their eyes shielded from delicate information.

Even though the Obama administration has not fully renounced this shady practice, the truth is that nobody’s really concerned that CNN will be permitted to broadcast the names of undercover sources in Afghanistan and Pakistan. No, the concern is not the “sources;” the concern is the “methods.” Damn straight, Professor Yoo: it will be difficult to argue that the methods of KSM’s interrogation are classified. Anyone who has read a newspaper in the past year is probably aware that the man was waterboarded 183 times in a single month. Anyone truly interested in this issue will almost certainly have encountered the evidence — very convincing — that none of those sessions revealed anything new or important. What ordinary readers do not know — what I, for instance, am dying to find out — is what precisely the chain of command was, leading from John Yoo’s personal approval of this species of technique, down to the sorry grunt who was ordered to strap KSM to the waterboard and drown him.

Please, argue the apologists. We didn’t drown him. We simulated drowning. The guy’s still alive, isn’t he? Well, no. Waterboarding is not a near death experience: it is a death experience. The human response is entirely neural; it is not rational; when you are being waterboarded, you are effectively dying. You are experiencing death: the full terror of death, unmitigated by any notions of truth or fiction. That you emerge from this experience miraculously undead is not the point: psychologically speaking, this man was effectively executed 183 times in a month. Or, if you want to get pedantic, an average of six times per day.

Fine, argue the apologists. Let’s accept this bit of sophistry for the moment. The undeniable fact is that KSM is a bad guy. Nothing done to him should be regretted for a moment.

I have no issue with the first part of that statement: KSM is, almost certainly, a terrible man. Not much you could say about him would be hyperbolic: yes, he is a true enemy of the state, a vicious brute responsible for the slaughter of innocents, a genuinely evil man.

The second bit is a bit more of a problem.

Should we regret what we did to KSM? In a remarkable 2007 piece in the Washington Post, interviews revealed that the soldiers at Fort Hunt responsible for debriefing Nazi prisoners prided themselves greatly on refraining from brutality: “‘During the many interrogations, I never laid hands on anyone,’ said George Frenkel, 87, of Kensington. ‘We extracted information in a battle of the wits. I’m proud to say I never compromised my humanity.'” According to many of today’s conservatives, these decent men were — what? — weaklings? Naifs? For adhering to American principles? For not compromising their humanity? For being decent?

Some of the prisoners at Fort Hunt were at least as repulsive as KSM. And a man like George Frenkel — an old-fashioned patriot, concerned with quaint notions of honor — decided that it was best, for the state of his soul, not to descend to the level of these brutes. So yes, we should regret what was done to KSM. Not because of what it did to him, but because of what it did to America. It diminished the nation. It reduced our collective humanity. This is not a pragmatic calculus — it is entirely independent of the question whether the torture accomplished anything (which it almost certainly did not).

Our regrets should be multiplied by our knowledge that the same techniques were practiced on the innocent. We know that innocent people were tortured in precisely the same way — and different ways, resulting in death — because they were presumed to be very bad men. This is the problem with the denial of due process: it nets you guilty men, sometimes, and crushes the innocent alongside them, always. Even if we accept that KSM deserves to be made to watch his child’s testicles crushed (and think hard before you decide, with John Yoo, to accept that); do we accept that the child deserves this? Do we accept that the innocent father of an innocent boy deserves this? That his son deserves this? Precisely how accepting are we, before we have lost any shred of humanity?

The only decent answer, of course, is that we accept none of it. It’s a unique kind of slippery slope: once you take the first step, you are already at the bottom. And, thanks to John Yoo, America took that first step. We do not know that anyone was specifically made to watch his child’s testicles crushed; we do know that innocent men were tortured, and threatened with the torture of their families. We know that they were tortured in order to elicit false information to justify the Iraq War. We know that they were tortured to death. You don’t have to ponder this too long to realize that these latter cases, if less sensational and immediately gut-turning than the approved castration of a child in front of his father, are no less evil.

It doesn’t take great skill to parse the rest of Mr. Yoo’s opinion piece. “The lawyers in the Bush administration—I was one—understood that military commissions could guarantee a fair trial while protecting national security secrets from excessive exposure.” Read: “Even I, a middling legal sycophant, understand that a proper trial exposes me to criminal liability.”

Yoo: “The Supreme Court has upheld the use of commissions for war crimes. The procedures for these commissions received the approval of Congress in 2006 and 2009.” Translation: “If I make a great show of approving of this commission business wholeheartedly, perhaps these procedures won’t be turned on, uh, me.”

Yoo: the trial of Zacarias Moussaoui (the “20th hijacker”) was completely foiled by the defense: “All they had to do was demand that the government hand over all its intelligence on him.” Translation: “In the helpful age of the sovereign President, people like me were protected by radical executive privilege, and nobody was going to hand over information that might send me and those I enabled to prison.” (Irrelevant footnote: Moussaoui was convicted, despite this travesty of justice, and is serving a life sentence without the possibility of parole.)

In short, the entire op-ed by John Yoo (was he paid by the word, or a lump sum?) can be boiled down to a single essential opinion: holding the trial of Khalid Sheikh Mohammed in Manhattan is very, very bad for John Yoo.

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