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John Yoo’s Torture Memos: How Close We Came to the End of America

Could a memo written by a “corporate” lawyer in the Office of Legal Counsel be enough to grant the president of the United States near-dictatorial power during a time of war, even a manufactured one like the “War on Terror”? George W. Bush seemed to think so. Justice Department lawyer John Yoo agreed. And two years ago, author Naomi Wolf was there to call them out on it—though at the time she was a lone voice in the wilderness. When those secret Justice Department memos came to light in recent days, Wolf’s clarion call for vigilance in the face of an over-reaching, power hungry Executive was finally vindicated. The Berkshire Eagle’s Robert F. Jakubowicz has more.
Two years ago, my son Peter gave me a book entitled “The End of America.” Its author, Naomi Wolf, issued a warning of how a dictator could take over our country “by invoking emergency decrees to close down civil liberties; creating military tribunals; and criminalizing dissent.” Wolf described the “echoes” of such events in America. She made a plausible case that it could happen here. But when I read the book, I did not think so. I had second thoughts when I found out that the groundwork was being laid for it to happen here by the “torture memos” written by John Yoo, a Justice Department lawyer in the Office of Legal Counsel (OCL) [sic] for former President George W. Bush. And I was shocked that all it would take is a government lawyer’s made-to-order legal opinion, no matter how flawed, to a president bent on exercising dictatorial powers. John Dean, a former counsel to President Nixon, recently referred to such legal opinions as “corporate lawyer opinions.” Those are written for corporate heads who order them from their lawyers to fit a corporate decision and never mind the legal fine points. Bush and members of his administration decided to use torture, including waterboarding, which in an Orwellian euphemism they called an “enhanced” method of interrogating suspected terrorists to obtain information. They also sought a legal opinion from their Justice Department’s OLC to cover themselves from criminal prosecution. The U.S. criminalizes acts of torture inside the country by state and federal criminal laws for assault, battery, murder, and so on. It specifically criminalizes “torture,” defined as the intentional infliction of severe pain and suffering, physical or mental, outside of the country, by federal law and by the ratification of a U.N. Convention Against Torture and the Geneva Conventions, which prohibited the torture of prisoners of war. Apart from the common sense knowledge that the drowning sensation produced by waterboarding is torture as that term is commonly understood, there is a well-established legal precedent for this meaning. Japanese interrogators who used this method on American prisoners of war were convicted as war criminals. Alberto R. Gonzales, as a lawyer and former judge, knew or should have known that waterboarding was torture and punishable as a crime based on the common understanding of the word “torture” and the clarity of the law, treaties and legal precedent dealing with it. Yet, he, as Bush’s legal counsel, requested an opinion in 2002 from the OLC regarding whether Bush’s enhanced interrogation methods of al-Qaida suspects during the “current war on terrorism” violated international law, and if these methods could be the basis for prosecution in the International Criminal Court. The only reasonable explanation for the request of this opinion is that the Bush administration wanted a legal cover against future prosecution.
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