David Cole on John Yoo and the Imperial Presidency

David Cole on John Yoo and the Imperial Presidency

Here is the key passage in Senator John McCain's anti-torture amendment to the 2006 Defense Appropriations Bill (which the Bush administration has threatened to veto if it arrives so amended): "No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment."

Here are the August 2002 words of John Yoo, then-deputy assistant attorney general in the Office of Legal Counsel at the Department of Justice (now a law professor at Berkeley and the author of a new book reviewed below) in his infamous "torture memo" to White House Counsel Alberto Gonzales. After hauling out many dictionaries, Yoo managed to redefine torture in the following pretzled fashion: "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." Thus, did a junior member of the Bush administration open the legal way for waterboarding in the White House. This is the man who, only two weeks after September 11, wrote a memo to Gonzales' deputy entitled The President's Constitutional Authority to Conduct Military Operations against Terrorists and Nations Supporting Them , which is certainly in the running for the most sweeping claim of unfettered executive power in our nation's history and which laid the (il)legal groundwork for an Iraq war of choice to come. "In the exercise of his plenary power to use military force," Yoo insisted, "the President's decisions are for him alone and are unreviewable."

Over four years later, lobbying for torture is no longer restricted to secret, high-level White House meetings, insider memos from Justice Department lawyers, or little privately scrawled notes from Donald Rumsfeld -- like the one on a November 27, 2002 memo on acceptable interrogation methods: "I stand for 8-10 hours a day. Why is standing [as a counter-resistance technique] limited to 4 hours?" Last week, on the torture side of the ledger, Vice President Cheney descended from the imperial heavens to lobby Senator McCain, a man who knows something about torture first-hand, to exempt the CIA (and possibly other secret agencies) from his amendment. According to the New York Times, here is the (tortured) wording of the exemption the Vice President was pushing:

"[The measure] shall not apply with respect to clandestine counterterrorism operations conducted abroad, with respect to terrorists who are not citizens of the United States, that are carried out by an element of the United States government other than the Department of Defense and are consistent with the Constitution and laws of the United States and treaties to which the United States is a party, if the president determines that such operations are vital to the protection of the United States or its citizens from terrorist attack."

"As for Mr. Cheney," the Washington Post editorial page commented astringently, "[h]e will be remembered as the vice president who campaigned for torture."

Last week, by the way, the ACLU released "an analysis of new and previously released autopsy and death reports of detainees held in U.S. facilities in Iraq and Afghanistan, many of whom died while being interrogated. The documents show that detainees were hooded, gagged, strangled, beaten with blunt objects, subjected to sleep deprivation and to hot and cold environmental conditions? The documents show that detainees died during or after interrogations by Navy Seals, Military Intelligence and ?OGA' (Other Governmental Agency) -- a term, according to the ACLU, that is commonly used to refer to the CIA." Evidently, this is just everyday life in the world created by Dick Cheney and John Yoo.

As it happened, Cheney was going for the torture trifecta. The Monday after the indictment and resignation of I. Lewis Libby, he announced the appointment of a new vice-presidential chief of staff, his counsel David Addington, a man the Washington Post has identified as "a principal author of the White House memo justifying torture of terrorism suspects. He was a prime advocate of arguments supporting the holding of terrorism suspects without access to courts." These days, it seems, this is nothing short of a qualification for holding high office. After all, the three men who head our new Homeland Security State -- Alberto Gonzales, Michael Chertoff, and Donald Rumsfeld (Justice, Homeland Security, and Defense) -- were all intimately involved in creating and/or parsing pretzled definitions of torture meant to free our "commander-in-chief" to order more or less anything he wanted done to anyone at all out there in the imperium.

Now, the Vice President proudly joins this line-up with the lovely complaint (according to a number of publications) that McCain's amendment "would bind the president's hands in wartime." (Ouch! And how that would hurt!)

Despite his anodyne prose, John Yoo is a living link between an imperial presidency freed of all constraints -- or all that matter anyway -- and the plunge into barbarism that has made torture the binding issue of this administration. (It's the sort of connection that Caligula or Claudius would have grasped instantly.) David Cole, whose Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism takes up the denial of basic constitutional rights in the name of "wartime" expediency, considers Yoo's new book and the extreme theory of presidential power it proposes in an essay that is running in the November 17 issue of the New York Review of Books and appears here thanks to the kindness of that magazine's editors. Tom

What Bush Wants to Hear
A Consideration of John Yoo's The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11
By David Cole

Few lawyers have had more influence on President Bush's legal policies in the "war on terror" than John Yoo. This is a remarkable feat, because Yoo was not a cabinet official, not a White House lawyer, and not even a senior officer within the Justice Department. He was merely a mid-level attorney in the Justice Department's Office of Legal Counsel with little supervisory authority and no power to enforce laws. Yet by all accounts, Yoo had a hand in virtually every major legal decision involving the U.S. response to the attacks of September 11, and at every point, so far as we know, his advice was virtually always the same -- the president can do whatever the president wants.

CONTINUED: http://www.tomdispatch.com/index.mhtml?emx=x&pid= 32668