I
Something about the Yoo Memo — as it will be known in history and, with some balls on the part of the Obama administration, used in evidence — set my addled brain to clicking. The most damning evidence yet of the sheer sophistry employed by Bush & Cronies to break the laws of mankind, it provides a blueprint of how wealthy True Believer Yalie twits pass their time attempting to free their bosses of the encumbrances of responsibility and reason when they decide they want to flay the fuck out of wayward infidels and get away with it.
Yoo's argument boils down to this: "war" — however nebulous a thing this might describe and depending on who's calling it that — renders the law inert and the president an emperor whose whim is diktat. Justice and morality, skirted, obfuscated, diluted, in fact dismissed as factors in the heavy gravity of how societies function unto themselves and with others, this done with the arrogance of unchecked power — hmm, where had I heard this before?
Sussing that required some review of the wholesale skirting, obfuscation, dilution and dismissal that have come to inform our national policy. First, some key points from the Yoo memo are broken down at the Washington Post:
Federal laws prohibiting assault and other crimes did not apply to military interrogators who questioned [suspected] al-Qaeda captives because the president's ultimate authority as commander-in-chief overrode such statutes, according to a newly declassified 2003 Justice Department memo released today . . .
The memo asserts that domestic and international laws and treaties, as well as the U.S. Constitution, would not apply to U.S. interrogations in foreign lands because of the president's inherent wartime powers . . .
"If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network," Yoo wrote. "In that case, we believe that he could argue that the executive branch's constitutional authority to protect the nation from attack justified his actions."
Interrogators who harmed a prisoner would be protected by a "national and international version of the right to self-defense," Yoo wrote. He also articulated a definition of illegal conduct in interrogations — that it must "shock the conscience" — that the Bush administration advocated for years.
"Whether conduct is conscience-shocking turns in part on whether it is without any justification," Yoo wrote, explaining, for example, that it would have to be inspired by malice or sadism before it could be prosecuted.
Y'know, I didn't go to Yale or nothin, but seems to me this is saying that if I bludgeoned your baby in its crib with a claw-hammer, it would be okay legally if my pure and only intention was to send her to Jesus.
The administration, we know, has danced and stalled, document-shredded and obfuscated around any culpability for the atrocities committed in their war, in Guantanamo, Iraq and "extraordinary rendition" kidnappings that resulted in imprisonment, dehumanization and summary torture of categorically innocent people. They stalwartly defended their right to absolute dominion over the souls and bodies of captured foes, yet they seemed reticent to provide details and, when details emerged, ran for cover like the craven criminal pussies they are. Being joyless, linear-thinking evangelicals, they could not register the irony of the juxtaposition between their myriad coverups and their own bullshit domestic surveillance canard, that "if you didn't do anything wrong, you don't have anything to fear."
The memo, though "rescinded" for just such liability fears, was one in a onslaught of criminal sophistry by which the administration's Departments of Justice and Defense sought to excise it from its obligation to the laws of humanity as signed onto by, and thus constitutionally binding in, this republic. To wit, the memo specifically cites the Bush41 clarification of the US's interpretation of the 1984 UN Convention Against Torture (CAT), even as Yoo lists it as something to circumnavigate.
The United States understands that, in order to constitute torture, and act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental pain caused by or resulting from (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration of application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.
As the Post reports, Yoo, Addington, Gonzales, et. al.'s cynical rationalizations would essay a hard line from parsing the most unconscionable actions humans can conceive to policy issued from the nation's highest offices.
[T]hen-Defense Secretary Donald H. Rumsfeld in December 2002 suspended a list of aggressive techniques he had approved, the most extreme of which were used on a single detainee at the military prison at Guantanamo Bay, Cuba. The prisoner, military investigators later would determine, was subjected to stress positions, nudity, hooding, exposure to dogs and other aggressive techniques.
Largely because of Yoo's memo, however, a Pentagon working group in April 2003 endorsed the continued use of extremely aggressive tactics. [emphasis added] The top lawyers for each military service, who were largely excluded from the group, did not receive a final copy of Yoo's March memo and did not know about the group's final report for more than a year, officials said.
Thomas J. Romig, who was then the Army's judge advocate general, said yesterday after reading the memo that it appears to argue there are no rules in a time of war, a concept Romig found "downright offensive."
As the photos and subsequent investigation of Abu Ghraib have shown, Rumsfeld's "suspension" of explicit torture techniques conspicuously did little to prevent the specific above-listed sanctions from becoming very real and standard operating procedures in Iraq. Far from the "few-bad-apples" artifice trotted out ad nazium when any of these officious pricks are presented with Abu Ghraib, True Believers at both the DoD and DoJ, as Phillippe Sands exhaustively documents in the latest Vanity Fair, spent countless considered, belabored and single-minded man-hours to effect and justify such measures.
Harper's always excellent Scott Horton, the first word in DoJ reporting these days and a professor of international law at Columbia, cut to the quick of this nexus of horseshit and raw nerve thusly:
"Most of the legal memoranda they crafted, including the March 2003 Yoo memorandum released today, consist largely of precisely the sorts of arguments that criminal defense attorneys make–they weave and bob through the law finding exceptions and qualifications to the application of the criminal law. But there are some major differences: these memoranda have been crafted not as an after-the-fact defense to criminal charges, but rather as a roadmap to committing crimes and getting away with it. They are the sort of handiwork we associate with the consigliere, or mob lawyer. But these consiglieri are government attorneys who have sworn an oath, which they are violating, to uphold the law."
In the interest of "healing," the Democrats will too likely forego their responsibility to prosecute these fuckpiles in the next administration, in the same way they have rolled over on the impeachment option in this. This would be accessory-after-the-fact felony, added to the aiding and abetting for the last six years by way of tacit assent. It would also be a dangerous precedent for the nation and the world. To make it clear just how much latitude Yoo's influential and utterly fascistic purview grant the executive, it's worth revisiting a now-infamous exchange between Yoo and Notre Dame professor Doug Cassel at a Dec. 1, 2005 debate in Chicago:
Cassel: If the President deems that he’s got to torture somebody, including by crushing the testicles of the person’s child, there is no law that can stop him?
Yoo: No treaty.
Cassel: Also no law by Congress. That is what you wrote in the August 2002 memo.
Yoo: I think it depends on why the President thinks he needs to do that.
From here, Horton justifiably sees ominous portents for the future of such men in precedent law, "namely United States v. Altstoetter, under the rule of which the conduct of the torture lawyers is a criminal act not shielded by any notions of government immunity . . . [To wit] the prosecution of Generalissimo Augusto Pinochet, the Chilean strong man whose life ended in a swarm of indictments and criminal proceedings [stemming from] convincing evidence of having authorized a regime of torture in connection with the interrogation of insurgents, who were removed from the rule of law."
Pinochet, the U.S.-handpicked fascist dictator — and friend and hero to evangelists of American economic orthodoxy like the late, cretinous Milton Friedman — was famously and heroically indicted by Spanish magistrate Balthasar Garzón in October 1998 for crimes against humanity and held under arrest in the UK. Eventually, as recently as 2006, Chile's own government had to itself rescind "reconciliatory" immunity protections and indicted Pinochet on charges of kidnapping, torture and murder, just a month prior to his death. Another American right-wing hero, Henry Kissinger, who plotted Pinochet's coup from the White House in 1973, remains unable to travel to some European countries due to similar outstanding warrants or "requests for interview."
Yoo, whose current position as professor of law at the University of California seems akin to a fundamentalist Christian teaching evolution, will have similar difficulties enjoying his fortunes abroad. He is among the rogue's gallery of Bush True Believers, including Rumsfeld, Gonzales, Tenet, Addington and Haynes being targeted by looming war-crimes complaint by German human rights attorney Wolfgang Kaleck and a criminal investigation in France. That's the thing about crimes against humanity, it puts you in the realm where justice and morality transcend borders. Frankly, they don't do that enough.
II
That's when it hit me: The Melian debate.
If you haven't brushed up on Thucydides' History of the Peloponnesian War lately, you're in good company; I don't remember that much of it from my early polisci classes at Syracuse, but the Melian Debate, in which the Athenians argued for the submission of the city fathers of Melos, always stuck in my mind. I think that's because our Euro-centric educations have always, at least implicitly, hinted that "we" favor Athens, the "democracy" in the war, versus the more overt proto-fascists of Sparta (which always made me a little uncomfortable with Frank Miller's 300).
But what the Melian Debate made clear in my young mind was that dogmatic aggrandizement of yourself or your country, because of your virtues, can lead you to be just as big a dick as the next guy and thus obviate your virtues. That's like some high school thug saying, well, my posse likes me, so like me too or I'll beat your fucking brains in.
So I re-read it, and fuck me . . . this shit took place in the late fifth century Before the Common Era, and the Athenians' bullshit could be cut and pasted right onto American national policy statements for the last eight fucking years, or last 60, for that matter.
Sparta's being dick doesn't make you any less a dick, especially if you think it does. I have abridged the Melian Debate below. Read it, if you've got nothing better to do, and weep.
The Melians are colonists of the Lacedaemonians [Spartans] who would not submit to Athens like the other islanders. At first they were neutral and took no part. But when the Athenians tried to coerce them by ravaging their lands, they were driven into open hostilities. The generals, Cleomedes the son of Lycomedes and Tisias the son of Tisimachus, encamped with the Athenian forces on the island. But before they did the country any harm they sent envoys to negotiate with the Melians . . . .
MELOS: . . . [Y]our warlike movements, which are present not only to our fears but to our eyes, seem to belie your words. We see that, although you may reason with us, you mean to be our judges; and that at the end of the discussion, if the justice of our cause prevail and we therefore refuse to yield, we may expect war; if we are convinced by you, slavery.
ATHENS: Nay, but if you are only going to argue from fancies about the future, or if you meet us with any other purpose than that of looking your circumstances in the face and saving your city, we have done; but if this is your intention we will proceed.
MELOS: It is an excusable and natural thing that men in our position should neglect no argument and no view which may avail. But we admit that this conference has met to consider the question of our preservation; and therefore let this argument proceed in the manner you propose.
ATHENS: Well, then, we Athenians will use no fine words; we will not go out of our way to prove at length that we have a right to rule, because we overthrew the Persians; or that we attack you now because we are suffering any injury at your hands. We should not convince you if we did; nor must you expect to convince us by arguing that, although a colony of the Lacedaemonians, you have taken no part in their expeditions, or that you have never done us any wrong. But you and we should say what we really think, and aim only at what is possible, for we both alike know that into the discussion of human affairs the question of justice only enters where there is equal power to enforce it, and that the powerful exact what they can, and the weak grant what they must.
MELOS: Well, then, since you set aside justice and invite us to speak of expediency, in our judgment it is certainly expedient that you should respect a principle which is for the common good; that to every man when in peril a reasonable claim should be accounted a claim of right, and that any plea which be is disposed to urge, even if failing of the point a little, should help his cause. Your interest in this principle is quite as great as ours, inasmuch as you, if you fall, will incur the heaviest vengeance, and will be the most terrible example to mankind.
ATHENS: The fall of our empire, if it should fall, is not an event to which we look forward with dismay; for ruling states such as Lacedaemon are not cruel to their vanquished enemies. With the Lacedaemonians, however, we are not now contending; the real danger is from our many subject states, who may of their own motion rise up and overcome their masters. But this is a danger which you may leave to us. And we will now endeavor to show that we have come in the interests of our empire, and that in what we are about to say we are only seeking the preservation of your city. For we want to make you ours with the least trouble to ourselves, and it is for the interests of us both that you should not be destroyed.
MELOS: It may be your interest to be our masters, but how can it be ours to be your slaves?
ATHENS: To you the gain will be that by submission you will avert the worst; and we shall be all the richer for your preservation.
MELOS: But must we be your enemies? Will you not receive us as friends if we are neutral and remain at peace with you?
ATHENS: No, your enmity is not half so mischievous to us as your friendship; for the one is in the eyes of our subjects an argument of our power, the other of our weakness.
MELOS: But are your subjects really unable to distinguish between states in which you have no concern, and those which are chiefly your own colonies, and in some cases have revolted and been subdued by you?
ATHENS: Why, they do not doubt that both of them have a good deal to say for themselves on the score of justice, but they think that states like yours are left free because they are able to defend themselves, and that we do not attack them because we dare not. So that your subjection will give us an increase of security, as well as an extension of empire. For we are masters of the sea, and you who are islanders, and insignificant islanders too, must not be allowed to escape us.
MELOS: But do you not recognize another danger? For, once more, since you drive us from the plea of justice and press upon us your doctrine of expediency, we must show you what is for our interest, and, if it to be for yours also, may hope to convince you:
Will you not be making enemies of all who are now neutrals? When they see how you are treating us they will expect you some day to turn against them; and if so, are you not strengthening the enemies whom you already have, and bringing upon you others who, if they could help, would never dream of being your enemies at all?
ATHENS: We do not consider our really dangerous enemies to be any of the peoples inhabiting the mainland who, secure in their freedom, may defer indefinitely any measures of precaution which they take against us, but islanders who, like you, happen to be under no control, and all who may be already irritated by the necessity of submission to our empire—these are our real enemies, for they are the most reckless and most likely to bring themselves as well as us into a danger which they cannot but foresee.
MELOS: Surely then, if you and your subjects will brave all this risk, you to preserve your empire and they to be quit of it, how base and cowardly would it be in us, who retain our freedom, not to do and suffer anything rather than be your slaves.
Melos refused to submit. The Athenians blockaded and starved them into surrender. After which, Thucydides reported, "The Athenians thereupon put to death all who were of military age, and made slaves of the women and children."