“It’s Not that Yoo Engaged in Really Bad Lawyering, Really It’s Not”

I’m fascinated by this op-ed by David Rivkind and Lee Casey, arguing that we’re all beating up on poor little John Yoo because we believe international law should trump US law.

In truth, the critics’ fundamental complaint is that the Bush administration’s lawyers measured international law against the U.S. Constitution and domestic statutes. They interpreted the Geneva Conventions, the U.N. Convention forbidding torture, and customary international law, in ways that were often at odds with the prevailing view of international law professors and various activist groups. In doing so, however, they did no more than assert the right of this nation – as is the right of any sovereign nation – to interpret its own international obligations.


That is why these administration attorneys have become the particular subjects of attack.

The central thrust of the op-ed is, of course, one giant shiny object. The role of international law has absolutely nothing to do with calls for Yoo to be held liable for his egregious opinions authorizing torture and warrantless wiretap. As I have pointed out, Looseheadprop has pointed out, and apparently Jack Goldsmith and other lawyers have pointed out, the problem was rather that Yoo ignored the key precedent in US law when he formulated his opinions. From Lichtblau’s book:

When Goldsmith and other Justice Department lawyers dusted off the early legal opinions on the NSA program, they were shocked to find that Yoo had not even factored into his legal analysis a seminal Supreme Court precedent on presidential power: the Youngstown steel case.

If I, a non-lawyer, can poke giant holes in Yoo’s legal opinions with a 30 second PDF search, then those opinions should clearly not be relied upon as valid. The question, though, is why the opinions were so shoddy: deliberate intent or incompetence? Using Rivkin and Casey’s assertion that Yoo is one of "the country’s finest legal minds," I have to conclude that the opinions are so shitty because Yoo could only authorize the things he did by ignoring US law–and that his effort to sidestep US law was indeed, an ethically and perhaps legally problematic act. The fact that Jack Goldsmith agrees with me about the shoddiness of these opinions–someone who fully agrees with Yoo about the appropriate role of international law in the US–proves that our complaints have nothing to do with international law.

So Rivkind and Casey are clearly trying to misrepresent to the WSJ’s readers what’s at issue here. They’re trying to distract from the fundamental shoddiness of Yoo’s (and others’) opinions.

Why? And why now?

I would assume that Rivkind and Casey–the Bush Administration’s primary legal apologists for the Administration’s abuses of power–have been sent out to start muddying the issues surrounding the legal opinions underlying the key actions in the Bush GWOT. That is, I would assume this op-ed reflects a real concern on the part of the Administration that the debate over the role of lawyers justifying their legally suspect programs is about to become more politically charged. And the fact that Rivkind and Casey published in the WSJ suggests the Administration is even worried about the public opinion of the WSJ’s conservative readers.

I can’t help but think of something that Scott Horton wrote shortly before he hung up his blogging keyboard (but which I can’t seem to find this morning Update: thanks to William Ockham for finding the link): the role that Yoo and Haynes and others came to play in our regime of torture may be about to break open in a public way.

In response to this “legal uprising,” David Addington and Alberto Gonzales decided to task John Yoo to prepare memoranda. These memoranda were commissioned with two purposes in mind. First, to protect the policymakers who had authorized torture techniques from future criminal liability (something which Gonzales had identified as early as January 2002 as a serious prospect). And second, to wield the Attorney General’s opinion powers to silence lawyers who had correctly evaluated the legal framework.

Both of these purposes were wrongful, and inconsistent with the proper use of the Attorney General’s opinion power. Criminal investigators may well conclude that this act joined John Yoo in a joint criminal enterprise with the persons who devised and pushed implementation of the torture policies.

Indeed, this is not entirely a speculative matter. We will shortly learn in the mass media that some prosecutors have already reached that conclusion and that the preparation of a criminal case is underway.

If they’re already sending Rivkin and Casey out to confuse the issues, I suspect the Administration is rather worried about what’s to come.

50 replies
    • earlofhuntingdon says:

      Yup, looks like a reprint of his OpEd for the LA Times but worth a second read. Also good to have it republished up north, nearer Berkeley, especially on the day this CYA piece by Rivkind and Casey came out. The latter is a statement of solidarity from the ReichWing, saying we’re still here to support you John (for now).

      Yoo ought not get too comfortable. He’s become the front man for the administration’s heavier hitters (so to speak) on Torture. As anyone who knows the difference between his rifle and his gun would appreciate, the guy on point always runs in the shite first.

  1. earlofhuntingdon says:

    Rivkind and Casey are the Michael Claytons of this administration. It has others, Doug Kmiec and Michael Mukasey among them, but these guys are often visible, out front. They are clean-up artists, like Harvey Keitel’s character in Pulp Fiction. “US law trumps ‘foreign’ law” is an old theme that gets the attention of those who think Rand is a novelist, not a think tank.

    You’re absolutely right. The principal failing in Yoo’s opinions is that they badly interpret binding US laws, and leave some of it (Youngstown) out completely. They treat one section of the Constitution – undefined provisions about presidential authority – as an Aladdin’s cave, a happily discovered cornucopia of whatever power they can imagine. They treat the “presidential” sections of the Constitution as an unattached house, standing alone in an empty landscape, not connected or in conflict with its neighboring sections on the powers of Congress, the judiciary and the people.

    Almost tangentially does Yoo ignore international custom and practice and more negligently, binding foreign laws, treaties, that the US has explicitly made a part of its own laws and to that extent, are no longer foreign (except in origin).

    But Yoo, no matter his insecure, immigrant, perfectionist, over-achiever’s ego, was too bright to have constructed those memos by practicing his legal craft. He teaches Con Law. He knows all about Youngstown, all about the history and precedent that informs him that the “legal” claims in his memos are without precedent or adequate foundation. In writing them, Yoo knew he wasn’t, IMHO, practicing law. He was a method actor engaging in a political act.

  2. tryggth says:

    Wonder if there are indications the Horton hinted at investigation is what spooked Meyers into leaking to ABC? Not the hint, but the actual investigation.

    • scribe says:

      Horton’s op-ed added the word “target” to his description of Yoo. He’s no longer just the public face on the Torture Memos.

      Calling someone a “target” has a lot of very chilling – for the target – criminal law implications.

      Stay tuned.

  3. JohnLopresti says:

    I think the Yoo cohorts’ target in their counterattack is, indeed, an attempt to create turbulence, but also focuses on a perceived weakness of Yoo et al.’s critics, which is the controversy over international law. The argument plays well to WSJ’s dyed in the wool multinational mercantilists, but not to many historically informed and engaged people who constantly contribute to the difficult area of international relationships. US Supremen Court Associate Justice Anthony Kennedy is one of the US minds actively involved in developing understanding of the interactions among various nations’ bodies of law. J. Toobin wrote a nice profile of AJ TKennedy on that topic in 2005, there. Toobin reveals AKennedy as a moderate or even conservative, but a thinker who understands the importance of the international context. And the opinion from Scotus in the Hamdan matter selectively reasoned through many specious Bush administration arguments without attempting to be too confrontational, one notable exception being Scotus’ firm statements about US obligations to the international community; and I think there was a goodly measure of warning emanating from a solid majority of Scotus in that narrow segment of the Hamdan ruling: as if counseling the Administration ‘not to get too far out on that’ business about quaint international polity being no modern man’s basis for moral treatment of prisoners. Peggy McGuiness in March 2006 wrote in a legal forum eloquently about AJ TKennedy’s juridical views of how lawabiding nations may help turbulent third world countries cure the internecine dislikes that see tribes seek to purge rival ethnic groups.

    I think the WSJ’s defenders of Yoo would discard too much of value in their attempt to attack what they perceive as a ‘liberal’ weakness. This is a remnant of times and geopolitical boundaries past, appealing to some less than wholesome instincts of some still impactful players on national and international legal scenes. I suspect the same argumentation could have issued from the oponents of the US entering the League of Nations. Bush was only slightly more amicable toward the UN than recent prior Republican US presidents, but sending Bolton as his representative was typical of Bush’s parrochial view of US interests.

    Another side of the somewhat frothy discussions among US liberals and progressives has to do with the sanctions that are loosely associated with transgressions of, in this instance, the Geneva accords on human rights, and the, to me fairly misdirected, implementation of the legacy of that largest of all postwar tribunals, Nuremberg. The US sent Milosevic up to The Hague for trial, but postwar venues for retribution such as that was after ww2 tend toward the showTrial concept, providing catharsis but little else. That these are difficult matters is a factor the WSJ authors are utilizing to weight their argument, but beguilingly misrepresenting the merits of their own partisanship.

    Another facet of the defenders of Yoo faction doevetails with the efforts of Republican strategizers to isolate issues that add cohesiveness to their toxic coalition of homeleticists and authoritarians, doubtless traits shared with microfactions in some of the very third world countries who would suffer most from any attempt to solidify into US legal thought yet further protections for the pernicious initiatives which Yoo himself launched, together with the help of his compeers. I think congress needs to find a way to develop more public understanding of how the US became a state sponsor of torture, even if Mukasey has declared Yoo’s work deliberative and asked Yoo to remain uncooperative with congress’ interest in providing Yoo an invitation to explain who comprised his workgroups on these initiatives of the Bush administration. I read a recent survey of the Bush administration invocation of states secrets, which revealed him to have invoked it 39 times, which, much like the Bush employment of signing statements, in aggregate exceeds the combined total invocations of state secrets privilege of all prior administrations.

    On the privacy issue, modern connectivity helps the case of folks who like the lessening of what heretofore had been US’s strong protections of our personal space. This issue relates to many sociologic themes, as well, disparately present both in ‘old Europe’ and the Levant, where the sense of personal privacy is less explicitly safeguarded by politically written laws. The juxtaposition of TX disdain with Arab individualism and old civilizations’ ethics based on lessened privacy derived from tribalism or modern overpopulation, certainly has been one of Bush’s wild rides, though I wonder if he realizes it yet. His apologetes, and those wildly defending the likes of Yoo, certainly are in full hue and cry already, and it is a long way until Labor Day.

    • earlofhuntingdon says:

      Thoughtful, informed comment.

      Regarding Nuremberg and its contemporary variations, such as the ad hoc tribunals for the Balkan and Rwandan genocides, there are show trial elements. I would attribute that less to “victors’ justice” than to the likes of Milosovic attempting to turn a court into a circus to delegitimize it and to avoid the objectively almost certain outcome. The facts were overwhelming, which explains why the fractious international community was able to set up these tribunals in the first place.

      It was precisely to avoid the appearance of victors’ justice that that same community set up the International Criminal Court. Ironically, that’s also the principal reason the exceptionalist US — most vividly under Cheney/Bush — was desperate to avoid its reach.

      In recent history, the US has been the victor, with the power to determine who was the criminal and how it would mete out “justice”. Cheney/Bush’s fear over applying objective, institutionalized standards to those acts was reasonable only to those who know what they’ve really done. It tells us a lot about how criminal it thinks its acts have been, no matter the number of opinions from wannabe insider lawyers it runs off its copier machines.

    • emptywheel says:

      Nope, neither of those are what I was thinking of (IIRC, I had already posted on this senate investigation when Horton posted this). It was one of Horton’s cryptic comments about something coming down the pike.

  4. WilliamOckham says:

    Oh, I remember. It was Balkinization.

    Both of these purposes were wrongful, and inconsistent with the proper use of the Attorney General’s opinion power. Criminal investigators may well conclude that this act joined John Yoo in a joint criminal enterprise with the persons who devised and pushed implementation of the torture policies.

    Indeed, this is not entirely a speculative matter. We will shortly learn in the mass media that some prosecutors have already reached that conclusion and that the preparation of a criminal case is underway.

  5. alabama says:

    Let us NOT be distracted from the main point about torture.

    It’s about Bush, and his need gratify a sexual impulse, and our (collective) reluctance to study this thing directly, and succinctly, and without digressive detours into the roles of secondary figures (Cheney included), choosing instead to explore various clever constructions of the law (endlessly fascinating as they are).

    I certainly admit that the study of Bush’s instinctual life is no fun: it isn’t very dignified, if only because it insists on the priority of his personal preferences over the grander questions of Law and Order. But we must summon the courage to address this–to study it.

    For one thing, given our political order, by failing to address his preferences–and the means by which he indulges them–those preferences (by default) become our own. He’s been our President for almost eight long years.

    We should ask ourselves about our inclinations to let him indulge his lust for torture, and about our own failure to address the role of that very instinct in our own collective political practice (beginning, I should say, by demoting our digressive attentions to Yoo, Addington, Hadley and Cheney). Yes it’s hard, and it’s messy. In fact I’m prepared to suppose that we are as deeply invested in Bush’s instinctual life as we ever were in Clinton’s, for all the differences that seem to inform those investments.

    If we blow off this topic–putting it aside for future reference–I can only take it to mean that we lack the fortitude to give it the attention it calls for.

    • earlofhuntingdon says:

      As with most things in this administration, the principal actor Cheney. Bush may share some of his insecurities, his emotional flaws and motivations. But it is Cheney who wages bureaucratic and real war. Cheney who turns ideas into policies and then action, accompanied by unrestrained retribution against those he thinks opposes him, regardless of whether it’s based on the law, loyalty to an institution or the bureaucracy, or because of political or moral opposition.

      However gratifying it might be to linger over his and Bush’s failings, I am more concerned about Congress, the actor the Constitution created to write laws, and to oversee how well and faithfully the executive applies them and spends the public money it allocates for that.

      The whole institution, at times, seems afflicted with Gingrich-Delay-Rove syndrome. But it is the GOP that religiously puts party loyalty above all else: above thinking, above the laws they write and the institution they call home, above the interests of the country they claim to lead and those of the citizens whose bi-annual votes keep them on the public payroll.

  6. Bushie says:

    How, boys and girls, are these bad actors going to be brought to justice? While EW’s blog is very interesting as are your responses to EW, where is the public outcry, the Congressional investigations, or the conveying of grand juries to facilitate trials? Mukasey can stifle investigations until Bushco leaves office, but what will happen under the next Prez? The US protects its own, no matter how vile, so I don’t see anyone being extradited to The Hague for trial.

    • george7 says:

      There is no statue of limitations on war crimes and crimes against humanity. There is also universal jurisdiction. The bad actors are going to have to fear being apprehended like Pinochet. It is of course unlikely that justice will finally be served. But there is nonetheless a very real uncertainty principle, you might way, from a bad actor’s point of view. As well there should be,

  7. george7 says:

    Part of what we are seeing is anxiety about securing a viable “legality defense.” That was behind Ashcroft’s appeal to the Senate Reservations to CAT, when he replied to a student critic at Knox College (and he was not wrong about what those reservations were intended to do). It was also behind all the 2002-2003 OLC memos, the 2006 MCA, and the veto of the 2008 Intelligence Authorizations Act. Etc. Today’s NYT story now writes about the CIA seeking a “legal rationale” in certain DOJ letters.

    Some people seem to be worried that they may not have the exemption from prosecution that they need.

    • earlofhuntingdon says:

      Mukasey’s DOJ is reduced to fighting a rearguard action. He is more competent and aware than both his predecessors; he knows he can’t reasonably conclude that torturing prisoners doesn’t violate international or US law. His Solomonic decision is not to decide the matter. He decides that he won’t prosecute interrogators who do torture – or who do the things everyone but Bush and Cheney and their defense counsel would call torture.

      As a rearguard action, Mukasey’s OLC avoids the evidentiary problem that Yoo gave his bosses. Yoo violated Cheney Governance Rule No. 1 by creating a paper trail he couldn’t control, one that could be compared a) to legal opinions of quality, and 2) to actions taken before and after his opinions were issued. Mukasey’s tactic is also meant to undermine prosecutions of Yoo’s and his political bosses.

      Whether that tactic works, whether it ties the next administration’s DOJ is a nice question. It won’t tie any foreign courts; in fact, such non-action statements reaffirm their jurisdiction. But Mukasey’s tactic won’t apply to torture interrogations that took place beforehand, and they wouldn’t apply to any actions that occur after his positions are reversed in the next administration.

      Given the widespread public discord over these contentious positions, the tactic should make all involved less comfortable, not more. They might renew their passports, DHS and Paraguayan immigration authorities still want to see one. But they should not entertain fantasies of that European vacation. The logic of US power notwithstanding, it might last considerably longer than they imagine.

      • scribe says:

        The problem for Yoo and the other lackeys at DoJ, which you highlight here:

        As a rearguard action, Mukasey’s OLC avoids the evidentiary problem that Yoo gave his bosses. Yoo violated Cheney Governance Rule No. 1 by creating a paper trail he couldn’t control, one that could be compared a) to legal opinions of quality, and 2) to actions taken before and after his opinions were issued. Mukasey’s tactic is also meant to undermine prosecutions of Yoo’s and his political bosses.

        is that CIA and the other agencies actually doing the torture were insisting on having it in writing, so they could not be left holding the bag of criminal liability when, as CIA correctly predicted, the inevitable disclosures and investigations came. Had CIA and other agencies been satisfied, as they had been pre-Watergate, with oral assurances of non-prosecution for criminality performed pursuant to Presidential orders (or given in the name of the President), then Yoo and his colleagues never would have written the memos whose pages will make a fine noose-rope.

        All that said, I agree with what I think is your central point, that the OPR investigation/review is being conducted not to find out whether the OLC lawyers acted unprofessionally/unethically, but rather to produce a bucket o’ whitewash for later use against a real ethics proceeding. As I’ve noted on this site in the past, the standard of proof for an attorney ethics proceeding in any state I can think of is “clear and convincing evidence” – evidence so strong and weighty that it leads the finder of fact straight to one conclusion. It’s not “beyond a reasonable doubt”, but it’s close. An opinion by the OLC which is anything short of an unequivocal condemnation of the quality and content of the Torture Memos will, in turn, provide a strong defense against any future ethics proceeding.

    • skdadl says:

      Next step might be to worry that the exemptions they got (and apparently are still getting) are not very good? I understood from the NYT and WaPo articles today about the DoJ answers to Wyden’s questions that the DoJ is reasserting the argument from intent (if you meant to do something else — ie, protect the U.S. — and not to torture, then you didn’t torture). IANAL, but I would be interested to hear how the lawyers would counter that argument, because it sure sounds like sophistry to me.

  8. sailmaker says:

    Both of these purposes were wrongful, and inconsistent with the proper use of the Attorney General’s opinion power. Criminal investigators may well conclude that this act joined John Yoo in a joint criminal enterprise with the persons who devised and pushed implementation of the torture policies.

    Indeed, this is not entirely a speculative matter. We will shortly learn in the mass media that some prosecutors have already reached that conclusion and that the preparation of a criminal case is underway.

    My cynical tinfoil hat is on:

    Some day in the future, is it possible by making his arguments so poorly that even those who are not schooled in law (that would be me) can figure out that his arguments are shoddy POS, is it possible to said that Yoo was asking, pleading, begging for review and reversal by his superiors?

    I am also wondering if there will be a review of the classification process: not a single word of the 81 page memo was redacted (reportedly), pointing to the fact that there was no reason to classify it in the first place, and therefore it was a political convenience for it to be classified, which was reversed as soon as Haynes left.

    • sailmaker says:

      Drat. The above was supposed to be in reply to WilliamOckham April 27th, 2008 at 9:11 am at #9.

  9. MadDog says:

    Bad lawyers bad lawyers
    Watcha gonna do, whatcha gonna do
    When they come for you
    Bad lawyers, bad lawyers
    Watcha gonna do, watcha gonna do
    When they come for you

    • earlofhuntingdon says:

      Rivkind and Casey, who have long batted clean up for this administration, would not have released their piece without telling the administration. As you suggest, it could well have been crafted to defend it against further disclosures. It would be entirely consistent with this administration’s “slam dunk” management of the press, including the too-much-beer, too many clams on the Vineyard, hatchet-man known as Tim Russert.

  10. alabama says:

    earlofhuntington: Is Cheney the President of the United States? Hardly. Does he get the credit for being the “bad guy”? Obviously. Am I going to let this scam interfere with the hard work of tracking Bush’s energetic and disciplined pursuit of his own agenda, with the faithful Cheney at his side? If I do, then I’m not doing much to advance my grip on this process.

    No one ever takes notice of Bush’s exceptional skills. He has them. First and foremost among these is his absolutely disciplined refusal to insult the other person (and nicknames are not the sort of “insult” I have in mind). He never insults his opponents, he never goes off in a rage, and it makes a great difference in his successful pursuit of his aims. The insults he leaves to Cheney, and Cheney does them well. Does this mean that Bush doesn’t seethe with vengeful resentment against his opponents, determined to settle their hash? To think anything of the sort is to take one’s eye off of Bush, and this I refuse to do.

    Do I “linger on Bush’s failings” when I point out his “sadism”? How so? I take his sadism as one of his “strengths”–in no small part because it harmonizes with a deeply sadistic strain in the American body politic. And I do NOT find it “gratifying” to take the measure of a political operator who knows how to conceal his modus operandi so well (and it’s crucial to Bush’s operations that he can so happily integrate his sadistic pleasures, which you choose to call his “failings,” with own self-effacing manner of self-presentation, leaving his “brains” to Cheney). Frustrating, rather, because it yields no obvious certainties.

    We are not wrong to concern ourselves with “Congress”, but just what exactlyl is Congress, anyway? A collection of fundraising opportunists who know how to stay out of trouble. And no, we’re not wrong to rage against the GOP–its members have an extraordinary knack for doing just as you say. But so, indeed, do the Democrats, and this calls for some patient honest study.

    We need to start looking at the things we really do best–killing people, starving them, throwing them into jail, buying them, selling them, screwing them, robbing them, driving them out of their minds–all the while placing the blame on the likes of Cheney and Yoo. Yes, Cheney and Yoo have certainly done their part; but to take one’s eyes off of Bush–precisely because he has a knack for letting us do that thing–and, in the process, to take our eyes off the very contributions that we ourselves make to the process by taking our eyes off of Bush–well, this is not my idea the best way to figure things out.

    Which is not to diabolize Bush–only to notice the rarely mentioned fact that the man is more exemplary, or more typical, than he is deviant.

    • earlofhuntingdon says:

      My comments are about the issues and facts we disagree on. Here’s a few:

      Bush refuses to insult others; he leaves that to Cheney? Molly Ivins writings suggests that’s not an accurate description. Bush’s skills are “exceptional”? I think there are two areas where that’s true: blaming others for his own mistakes, and allowing his friends to help themselves to the public cookie jar. Everything else, not so much.

      Is Cheney the President of the United States? Hardly.

      Not so fast. Do you mean in law or in practice? That Bush is formally president is legally and politically convenient for Cheney. He could never have been elected himself. He can hide behind Bush’s prerogatives; he has none as VP. Bush has primary legal liability for Cheney’s actions, since he’s regarded as acting for the president. But who decides what to do, what it means to be president, besides throwing out baseballs, eating hamburgers with the Queen, and dancing the jig under the White House portico?

      Cheney. He controls access to the president, he’s the last to whisper into his hear or move his lips. He created the shadow government that disrupts and supersedes the formal policy- and decision-making regimes within the government. The formal processes belong to Bush, he wouldn’t need to go around them, only to command and use them. The replacement structure is necessary because it’s Cheney pulling the strings.

      I think we agree that Bush is not blameless or powerless, that he invites corruption and benefits from it. His widespread incompetence harms only those he doesn’t care about and furthers the neocon myth that government is inherently incompetent when, in fact, it is the president and his agency heads who are incompetent. No competent executive would delegate that much power to any subordinate; it’s been taken from him, not delegated by him.

  11. earlofhuntingdon says:

    I don’t often find common ground with Frank Rich these days, but today he’s worth the read. He demolishes Mrs. Clinton’s argument that Obama has more “attackable” baggage than she does. He does the same for those claiming McCain will continue to have an easy ride because of continuing dissension among the Democrats.

    The idea of McStumble debating Obama (or Clinton), on healthcare, the future of middle class America, economic policy and even the use of war-as-foreign-policy should make the GOP tremble.

    The best deal for Mr. McCain would be for Mr. Bush to disappear into the witness protection program.


    Last week found Mr. McCain visiting economically stricken and “forgotten” communities (forgotten by Republicans, that is) in what his campaign bills as the “It’s Time for Action Tour.” It kicked off in Selma, Ala., a predominantly black town where he confirmed his maverick image by drawing an almost exclusively white audience.

    [emph. added]

  12. masaccio says:

    The real problem with torture now is the dreadful Military Commissions Act. The letter to Senator Wyden points out that the MCA permits the President to issue guidance by executive order on the US position on the Geneva Convention, beyond the War Crimes Act. Apparently the President can do something nasty so long as it doesn’t shock the conscience in the light of the information the government wants. Amazingly, no mention of how that relates to whether the torturee actually knows anything. See March 5, 2008 letter, link in the NYT article, I can’t seem to get it directly.

  13. Cujo359 says:

    The guys who wrote that editorial really are jackasses. I’ve written several articles critical of John Yoo and Alberto Gonzalez. I never once invoked international law as an argument, unless it was to illustrate that the rest of the world doesn’t agree with them, either. There’s also the War Crimes Act of 1996, which a largely Republican Congress passed, that says that the Geneva Convention applies to us and violating it has criminal penalties. As you wrote, EW, their arguments can be disputed on the grounds of U.S. law alone.

    In fact, I cannot recall a single article anyone’s written that invokes international law as a reason, although I’m sure there is one somewhere.

    To accept that Yoo is right is, to me, to accept that the Constitution and U.S. law take second place to some vaguely defined issue of national security.

    • masaccio says:

      I’ve been pointing out that the standards of international law were set by the US in the Nuremberg trials. In the matter of Yoo, the international war crime standards are set in Alstoetter.

  14. ezdidit says:

    Bush and Cheney have suborned faulty legal advice as a defense against their admitted lawbreaking.

    It is all the more an outrage; Yoo should be disbarred; Bush Cheney Rumsfeld Rice Powell et al (the co-conspirators) should be tried in the Hague on charges of torture of a distinct class of people. This is legally called genocide.

    No politics can intercede, no U.S. legal process can contravene their immediate rendition/extradition for trial. These criminal defendants have rights, though they have deprived so many of their’s. They are, simply, murderers.

  15. alabama says:

    Earl of Huntington, you have NOT discussed one particular issue I’ve raised, and one that may not, for all I know, exist, so far as you’re concerned, as an issue at all–namely the force, focus, and determination of Bush’s drive to hurt people in very concrete ways. This is the one real point I’ve been trying to make, and it seems not to have registered with you in any meaningful way.

    Having read about Presidents in the papers for almost sixty years, I think I have some idea of the executive skills at issue, not to mention the laws, divisions of labor, checks and balances, limits and licenses that make up the tissue of our government’s various eventualities. I’ve watched the players of the game; and what I’m trying to say here, and what you expressly deny, is that Bush is a lot more competent than most of us care to admit, especially so in the business of keeping his dearest initiatives safely protected from a general uneasiness within and beyond the Beltway.

    The question of torture goes to the heart of the point I’m trying to make: we’ve been living with Bush the Torturer from the day he started his tenure as Governor of Texas (if you wish to argue that capital punishment isn’t a form of torture, then I’ll concede that we have nothing to discuss).

    Hurting people is something that Bush likes to do, and he does it with the single-minded attention and expertise of a dedicated master. That he doesn’t often speak well, or that he doesn’t know the difference between Slovenia and Slovakia, or between Sunnis and Shiites, is of limited relevance to the point I’m trying to make: for those who are out to cause pain, differences of this kind are really beside the point.

    Compared to Bush, Cheney’s a piece of cake: he fairly begs us to read his villainy; it makes him looking mean and powerful. I mean, before Cheney, when did a sitting Vice-President ever say “fuck you” to a U.S. Senator in public? This is how Cheney holds our attention, and takes it away from Bush. Bush is the guy who likes to crack easy-going jokes about himself. He doesn’t seem to do much, and in fact he doesn’t do much at all. It’s my guess that he doesn’t care about anything much–except, of course, when it comes to the pleasures of torture. Then his eyes start to shine, and the breathing gets really, really heavy. And then the courtiers–the lawyers like Yoo and Gonzales–go out of their way to get him his very next thrill. Where Jack Kennedy’s minions found him his girls, Bush’s find him his victims, along with the license to do his thing. Though the consequences may differ, the missions of the respective courtiers are much the same: they give the boy his toys.

    But this is not your kind of discourse. It doesn’t interest you, doesn’t move you, and doesn’t excite your curiosity in the slightest. For you, it isn’t real–except, perhaps, as the ventilation of a slightly hysterical enthusiast (me, for example). And since you have valuable and thoughtful things to say, I’m willing to admit that I find this a little disappointing; but given the general, long-term orientation of our discourse on these things–treating the evil Cheney as if he had a monopoly on the brains and the priorities of this administration–I cannot honestly claim to be very surprised.

    • behindthefall says:

      — the force, focus, and determination of Bush’s drive to hurt people in very concrete ways.

      Do you have data? Do you know some of this for a fact?

      • WilliamOckham says:

        The following incidents are in the public record:

        Bush showed a tendency for cruelty to animals as a child (blowing up frogs with firecrackers).

        In college, he defended the use of branding frat pledges with a hot metal coat hanger.

        Ron Suskind tells a story about Bush’s performance in basketball game that illustrates a tendency to use pain and rule-breaking to unnerve the opposition.

        Then there is his reaction to Karla Faye Tucker’s execution.

        Down here in Texas there are a number of stories that aren’t part of the public record, but are similar, but darker.

  16. alabama says:

    Of course I do, behindthefall, and so do you!

    Shall we eat up our time and energy trotting out the long, long list in all its sordid details?

    If so, then I’ll let you start this parade by reviewing Bush’s performance as the Grand Executioner of Texas, enumerating each and every one of his delectable deaths, one by one by one. When you’ve finished–if ever you do–then I’ll pick it up from there.

    • bobschacht says:

      Of course I do, behindthefall, and so do you!

      Shall we eat up our time and energy trotting out the long, long list in all its sordid details?

      If so, then I’ll let you start this parade by reviewing Bush’s performance as the Grand Executioner of Texas, enumerating each and every one of his delectable deaths, one by one by one. When you’ve finished–if ever you do–then I’ll pick it up from there.

      Aha. I’ve seen this tactic before. No, alabama, it is not up to behindthefall to do your job for you. If you want to make a case, you have to do it. The ball, sir or madam, is in your court.

      Bob in HI

  17. JGabriel says:


    I’m fascinated by this op-ed by David Rivkind and
    Lee Casey, arguing that we’re all beating up on poor little John Yoo because we believe international law should trump US law.

    Perhaps this has already been noted, but I am really, really sick of this argument – or more accurately, sophistry.

    All international treaties that have been ratified by the US Congress, such as the Geneva Conventions, *are* US law.

    End of argument.

    So tired of listening to these idiotic Yoo and torture defenders treat the rest of us like idiots.


  18. earlofhuntingdon says:

    Most frequent readers on this site feel that Bush doesn’t care whom he hurts, as long as it’s not his friends or contributors. His mocking mimicry of Karla Faye Tucker, shortly before her judicial execution in Texas, is one of the most public episodes that displayed his lack of empathy and depth. Sympathy for her may not have been possible, given her crimes. But an emotionally mature person – let alone a leader who claims to ponder his Christian religion seriously – would have empathized with her predicament and that of her victims.

    At a minimum, a mature executive would have appreciated the power over life and death the state arrogates to itself and which it puts temporarily into the hands of its governors and presidents. Bush dismissed it all, minimizing it to an analogy he could comprehend, tossing out of his bar a fat geek who wanted to pledge his fraternity.

    As an executive, Bush does that with all his tasks. He gave the German Chancellor, Ms. Merkel, a neck rub not because he was out negotiated over difficult, important issues, but because he was bored and out of his depth. That’s not the behavior of a Machiavellian power-broker; it’s the behavior of a small, empty man wearing size twelve boots when nines would be too big.

  19. behindthefall says:

    the behavior of a small, empty man

    stories that aren’t part of the public record, but are similar, but darker.

    Hurting people is something that Bush likes to do, and he does it with the single-minded attention and expertise of a dedicated master.

    Same data available to all, but very different taakes. This would be worth following further.

  20. alabama says:

    earlofhuntington, no one has mentioned a “Machiavellian power broker”!

    Such a “prince” has to cultivate a well-disciplined mind and lots of executive experience. Bush has needed none of these to win and stay in office–only the skills of the salesman and enabler of chums. And as for that “power over life and death” to which you refer: drive-by shooters know all about this, and so do mass murderers–some of whom may also happen to have a strong set of executive skills (though I have my doubts about this), and others not at all.

    But my point has nothing whatever to do with intellectual capacity. It has to do with drives, urges, hungers, appetites–in the case of President Bush, the drive, the urge, the hunger, the appetite to hurt people. Hurting people gives him pleasure, and he never misses a chance to indulge it. One might even say that he sought higher office in the first place for the chances it afforded to indulge it.

    More than one elected official has told me that he really runs for office for the women that come with the job. A different lust is at play where Bush is concerned, namely “bloodlust,” along with that extra yield of fear to be seen in the eyes of the victim.

    You call him “small” and “empty”, and so indeed he is. He’s also a serial killer. We’ve let him do his thing, and I really want to know why.

  21. smartlady says:

    Does anyone believe that Yoo’s testimony could provide the grounds for an “all inclusive” indictment and trial for a cornucopia of criminal conspiracies by major administration shakers and movers? Is the “Domino Effect” too much to hope for if Yoo can be turned?

  22. looseheadprop says:


    Rivkin is another Victoria Toensing with pants. WHY would any reputable paper print anything this shill writes?

  23. PJEvans says:

    Bush refuses to insult others

    Alabama, haven’t you ever noticed the nicknames Bush gives people? Every one of them is insulting. He has to tear down everyone else so he can feel big. It’s a bad sign in a president.

  24. rkilowatt says:

    [email protected]–”to explore various clever constructions of the law (endlessly fascinating as they are.”

    “… the whole atmosphere of every prison is an atmosphere of glorification of that sort of gambling in “clever strokes” which constitutes the very essence of theft, swindling and all sorts of similar anti-social deeds.” PKropotkin’s Memoirs, ca 1899

  25. pseudonymousinnc says:

    So Rivkind and Casey are clearly trying to misrepresent to the WSJ’s readers what’s at issue here.

    No, they’re not: they’re providing a legalistic shit-screen for the WSJ editorial-reader’s gut feeling that torture is a-okay. A malodorous fog hangs over everything Rivkind does.

  26. rkilowatt says:

    There is much agreement that all life-forms are seeking to survive, as a driving dynamic.

    Yet the human kind is further understood to be driven by the urge to cause effects… any effect being better than no-effect. No-effect is rather equivalent to death, isn’t it?

    Tyrantgeorge seems to specialize in causing effects that are harmful, as if past attempts to cause other kinds of effect were somehow stymied. The politics of governing offer endless opportunity to wheel and deal, manipulate, act covertly,trick,bait-n-switch,dominate and, through it all, without any hard lines of accountability. The results are confused,murky and defy easy measurement. Tyrantgeorge knows well who is causing the actions, so believes in a perverted way that he is acting responsibly.
    Of course, this is just my opinion.

  27. JohnLopresti says:

    I agree about the importance of congress’ work throught DTA, MCA, as a scale with which to evaluate Yoo’s craft from his olc years; but that may be a retrospective approach; I would have to know more about the legislative history of DTA to find much relevance to Yoo’s exercises. For the curious, links to principal deputy assistant attorney general in DoJ’s office of legislative affairs Brian Benczkowski’s two missives to Sen.Wyden appear below. I found it extraordinary that the letters take the position that humane treatment of prisoners is waived, and that the letters argue Scotus has supported that; see the missives for full legal parse.

    An apparently undated letter responding to Wyden’s first lettter of August 8, 2007; this letter from Benczkowski is datestamped in September 2007; the quality of the pdf is poor, as if scanned from a photocopy with skew and dropouts; the date stamp is positioned carefully as if blending into the letterhead; the image is so degraded Acrobat does not see it as text but instead as a bitmap only. Yet the character font of the datestamp looks like it is the same as in the subsequent Benczkowski letter, see below. NB: August 27, 2007 was the date of Gonzales’ resignation.

    An apparently undated letter datestamped in March 2008 responding to Wyden followup questions dated December 20, 2007. The pdf has only slight skew, as if scanned from the original; AdobeAcrobat can see the content as searchable text. The datestamp appears to have the same font as the prior letter fro Benczkowski but is positioned haphazardly floating between stationery letterhead and body of text of first paragraph.

    A glance at SCSI’s website shows it is somewhat constrained about its public presentation. But sites of even more open committees in the congress have nearly as labyrinthine presentations. Though SCSI’s site makes little attempt to provide an easy way to locate any documents. Even its chronicling of its own public statements begins in reverse fashion, so the most current issues require the visitor to scan downpage instead of finding the current matters presented at the topmost spot. Predictably for a site of a somewhat junior member of a committee as buttondown as SCSI, Wyden’s own pleasant website addresses mostly constituency matters and has no apparent mention of these two letters which NYT has linked.

    If the datestamps were placed by the sender instead of producing a computerfile which included the date in the body of the letter drafted, the second letter arrived at SCSI or at Wyden’s office, during Mukasey’s tenure; and the first letter perhaps was during the interregnum without an AG if sent at the end of August, but maybe that first letter from Benczkowski was material Gonzales oversaw while still there as AG. I would doubt Yoo’s reallyPoliticalLawyering workproduct would have been provided in courtesy copy form to the Gang of 8, but that might be an interesting datapoint to know. Declaratively, I take a more permissive view of JayR’s famed memo to file approach to participation in G8 than many in the liberalsphere, though it is nice to compare Harman’s somewhat more aggressive feedback style.

  28. timbo says:

    Gosh–and I thought we were all “beating up on” Yoo because we thought that civilized people respect human dignity, the Rule of Law, and the (ratified) Bill of Rights. Gosh, what is patriotism these days? Kow-towing to the powerful because tyranny is a better form of government than liberal democracy?

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