John Yoo stands outside the Anglo-American legal tradition. His views lead to self-incrimination wrung out of a victim by torture. He believes a president of the US can initiate war, even on false pretenses, and then use the war he starts as cover for depriving US citizens of habeas corpus protection. A US attorney general informed by Yoo’s memos even went so far as to tell the Senate Judiciary Committee that the Constitution does not provide habeas corpus protection to US citizens.
Yoo’s animosity to US civil liberties made him a logical choice for appointment to the Bush Regime’s Department of Justice (sic), but his appointment as a law professor at the University of California, Berkeley, shatters that university’s liberal image.
Habeas corpus is a centuries-old British legal reform that stopped authorities from arbitrarily throwing a person into a dungeon and leaving him there forever without presenting charges in a court of law. Without this protection, there can be no liberty.
Yoo is especially adamant that “enemy combatants” have no rights to challenge the legality of their detentions by US authorities before a federal judge. Yoo would have us believe that the detainees at Guantanamo, for example, are all terrorists who were attacking Americans. Nothing could be further from the truth.
The question is whether any of the detainees are “enemy combatants.” Yoo would have it so because the president says it is so. As the president has already decided, what is the sense of presenting evidence to a judge? For Yoo, accusation by the executive branch is the determination of guilt.
But what we know about the detainees is that many are hapless individuals who were captured by warlords and sold to the Americans for the bounty that the US government offered for “terrorists.”
Some of the other detainees could be Taliban who were engaged in an Afghan civil war that had nothing whatsoever to do with the US. The Taliban were not fighting the US until the US invaded Afghanistan and began attacking the Taliban. This would make Taliban detainees prisoners of war captured by invading US troops. How POWs can be tortured, denied Geneva Conventions protections, and tried by military tribunals without the US government being in violation of US and international law is inexplicable.
Suppose you were a traveling businessman grabbed by a tribe and sold to the Americans. Would you consider it just to be detained in Gitmo, undergoing whatever abuse is dished out, for 5 or 6 years of your life, or forever, without your family knowing what has become of you?
Among the most appalling injustices was that inflicted on John Walker Lindh, an American citizen who, like Americans of a previous generation who fought in the Spanish Civil War, was fighting for the Taliban in the Afghan civil war against the Northern Alliance. Suddenly the Americans entered the Afghan civil war on the side of the Northern Alliance. Lindh was captured and sentenced to 20 years in prison.
This kind of punishment is a new form of tyranny. It is not law, and it is not justice.
Lindh had no opportunity to withdraw once the US entered on the opposite side. The only point of treating Lindh as if he were some dangerous traitor was to demonstrate that American citizens can be treated to a Kafka-type experience and have the American public accept it.
Yoo stands for the maximum amount of injustice, illegality and unconstitutionality that can be committed in the name of the national security state.
No American security was at stake in Afghanistan or in Iraq, and none is at stake in Iran today. The Bush Regime may be creating security problems for Americans in the future by fomenting hatred of Americans among Muslims. This security problem is insignificant compared to the threat to our liberty and freedom posed by John Yoo and his Republican Federalist Society colleagues who are committed to tyranny in the name of “energy in the executive.”
Writing on the Wall Street Journal editorial page on June 17, Yoo denounced the five Supreme Court justices who defended the US Constitution against arbitrary “energy in the executive.”
Yoo believes that the Constitution and liberty rank below “the nation’s security.” Fortunately, Yoo wrote, a fix is at hand. “The advancing age of several justices” means that President McCain can give us more judges like Roberts (no relation) and Alito who will make certain that mere civil liberties don’t get in the way of arbitrary executive power justified by national security.
In a Yoo-McCain regime, the terrorists you will have to fear are those in your own government, against whom you will have no protection whatsoever.
PAUL CRAIG ROBERTS was Assistant Secretary of the Treasury in the Reagan administration. He was Associate Editor of the Wall Street Journal editorial page and Contributing Editor of National Review. He is coauthor of The Tyranny of Good Intentions.He can be reached at: firstname.lastname@example.org