Initially I was shocked at the thought of the University of Virginia welcoming former Justice Department lawyer John Yoo to the “Academical Village” founded by Thomas Jefferson.
There was something very wrong about that picture. Was it not Mr. Jefferson who condemned tyrannical acts—including ones that fell far short of waterboarding—in the Declaration of Independence?
But I have come around to the view that Yoo’s visit on Friday could present a rich teaching moment for those of us Virginians who believe passionately in the highest ideals that Mr. Jefferson articulated so eloquently.
Yoo’s visit presents a unique opportunity for my own children — four of them UVA alumni — to convey the essence of The University to those of our eight grandchildren who already aspire to study there.
A teaching moment like this does require us to look through the eyes and the spectacles of Mr. Jefferson and our country’s other gutsy Founders who pledged to each other “our Lives, our Fortunes, and our sacred Honor” to rid tyranny from America’s shores. We tend to forget that the outcome of that brazen battle for liberty was far from assured when that vow was attached as the closing line of the Declaration of Independence in July 1776.
To King George III, the words and deeds of the Founders spelled treason, and it was altogether predictable that he would order his formidable army to pursue and hang those upstart insurgents if his troops could get hold of them.
I will admit that I still get goose bumps reflecting on their commitment, their courage, and the responsibility we share as their successors.
After eight long years of war, the insurgents led by George Washington finally defeated the army of the English king and secured independence for the 13 colonies. Then, other Virginians, together with statesmen from sister colonies, succeeded in replacing one man’s dictates with a Constitution that divided power among three co-equal branches of government and made the rule of law supreme.
That is the historical background against which, 225 years later, John Yoo and other government lawyers of easy conscience decided they would “opinion away” the checks and balances etched into the Constitution by the blood of early patriots.
We Virginians take understandable pride in Mr. Jefferson and the university in Charlottesville that he considered his signal achievement. Equally deserving of praise, though, are two other Virginia patriots hailing from nearer to where I live — George Mason of Fairfax and Patrick Henry of Hanover County.
“Of the first order of greatness,” that’s the way Mr. Jefferson described George Mason. And small wonder. For it is largely thanks to him that all — including Yoo, you, and me — enjoy a constitutional right to “freedom of speech.”
Together with fellow Virginian James Madison, Mason had drafted the Constitution, which defined the relationships between the three branches of government. But Mason then shocked Madison and shattered their friendship, when Mason announced in 1787 that he would not support ratification as the document stood.
Mason, one of the most self-effacing persons ever to serve the American people, put his reasoning succinctly: “There is no Declaration of Rights.”
That being the case, it was not an option to give up. Together with Patrick Henry, Mason launched a relentless political campaign and in 1791 won approval of a Bill of Rights — the first ten amendments to the Constitution — which immediately became a model for other countries concerned with protecting individual freedoms.
Hence, John Yoo’s First Amendment right to speak and be heard is beyond dispute. At the same time, I believe we would betray the Founders, were we to leave him unchallenged by glossing over his gymnastic twisting of logic and law — not only in places like Iraq and Guantanamo, but closer to home, as well.
Sadly, the guarantees embodied in five of those first ten amendments – and in the Constitution itself – have been eroded by dubious theories promoted by Yoo, like his concept of an all-powerful “unitary executive” who can do whatever he wants to anyone unlucky enough to be judged an “enemy” by the leader during “wartime,” even an open-ended, ill-defined conflict like the “war on terror.”
Not even the Great Writ of habeas corpus escaped Yoo’s sophistry — the fundamental right, wrested from King John of England in 1215, to seek judicial relief from unlawful detention. Even King George III was constrained by habeas corpus, and Madison and Mason were careful to include that basic guarantee in the Constitution itself (Article One, Section 9).
But Yoo and some fellow lawyers saw the ancient legal right as impinging on President George W. Bush’s unlimited powers.
After the 9/11 attacks, Yoo propounded theories that elevated Bush beyond the bounds of federal or international law. As Yoo has acknowledged, his opinions could allow the President to crush a child’s testicles to get his father to talk, or to willfully annihilate a village of civilians.
“Sure,” Yoo responded when a Justice Department investigator posed the latter hypothetical.
Many are aware of John Yoo’s role in serving up legal “justification” for “enhanced interrogation techniques,” including the near-drowning of waterboarding. But fewer know that the Convening Authority for the Military Commissions at Guantanamo, military judge Susan Crawford, has said that those techniques meet the “legal definition of torture.”
Fewer still seem aware of Yoo’s role in the run-up to the invasion of Iraq, when he focused on how to avoid the constitutional requirement for a declaration of war by Congress and advocated views totally at variance with those he had expressed while working as a Congressional staffer just a few years before.
Under Yoo’s theories, “wartime president” Bush could do whatever he wanted, even if that meant ignoring Congress, the United Nations Charter, and the post-World War II Nuremberg Tribunal. Bush simply could brush aside prohibitions against aggressive war as he did by invading Iraq.
At Nuremberg, chief U.S. prosecutor, Supreme Court Justice Robert H. Jackson, called a war of aggression “not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”
Nuremberg prosecutors also didn’t let off Nazi lawyers who gave Adolf Hitler “legal advice” on how he could violate international law. The Nazi lawyers, too, were prosecuted at Nuremberg, and many served long prison sentences.
And Justice Jackson could not have been more explicit in insisting that the Nuremberg standard must apply equally to all.
War crimes, he said, are “crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.”
Torture, then, can be regarded as a derivative crime—part of the “accumulated evil” springing from the “supreme international crime” of a war of aggression. It is not necessary here to describe Yoo’s attempts to “justify” torture, since that role is detailed in the 289-page report of the Justice Department’s own Office of Professional Responsibility.
Suffice it to say that OPR concluded, among other things, that:
“Yoo’s legal analyses justified acts of outright torture.” (p. 252)
“He therefore committed intentional professional misconduct.” (p. 254)
The OPR report and other official documents are replete with descriptions of the despicable torture techniques themselves, for those with the stomach to read them. Sadly, they show how far we have come since Patrick Henry asserted that “the rack and the screw” should be left behind in the Old World.
These days, as bald eagles ride the March winds north along the Potomac from Mason Neck, they carry a ghost’s lament. Someone is turning over in his grave downstream at Gunston Hall in Fairfax County. It is George Mason who is mourning, like Rachel of old, who would not be consoled.
I imagine that Mason’s moaning will become even more pronounced as Friday draws near — not only because of Yoo’s visit to Charlottesville, but also because Friday marks the seventh anniversary of the unprovoked invasion of Iraq.
It was the bizarre opinions of Yoo and his colleagues that subverted the intent of Madison, Mason, and other Founders who took great pains to give the power to declare war to the Congress — not to the President — in the Constitution.
Beyond even the great principles of the American Republic, however, there is the question of personal decency that applies to Yoo and his visit to the University of Virginia. Erstwhile UVA Writer-in-Residence, William Faulkner, summed this up nicely, saying:
“Some things you must always be unable to bear. Some things you must never stop refusing to bear. Injustice and outrage and dishonor and shame. No matter how young you are or how old you have got. Not for kudos and not for cash, your picture in the paper nor money in the bank, neither. Just refuse to bear them.”
That is why I shall join others taking part in Friday’s rally starting at 2:00 p.m. from “The Corner” of The Grounds at UVA, before Mr. Yoo speaks in Minor Hall at 3:30.
I view it as a mark of respect for Mr. Jefferson, who I feel certain would want present-day Virginians to bear witness in defense of the blessings of liberty that he and his contemporaries worked so hard to secure for ourselves and our posterity.
RAY McGOVERN was an Army officer and CIA analyst for almost 30 year. He now serves on the Steering Group of Veteran Intelligence Professionals for Sanity. He is a contributor to Imperial Crusades: Iraq, Afghanistan and Yugoslavia, edited by Alexander Cockburn and Jeffrey St. Clair (Verso). He can be reached at: firstname.lastname@example.org
A shorter version of this article appeared at Consortiumnews.com.