12 January 2010

Can't believe he did an interview

Severalflaws

1) "Remember the time we were in...." - The most recent anti-torture treaty we signed indicated explicitly that there is no time or emergent crisis that justifies torture as state policy. So this argument doesn't matter because it violates the law as written.

2) His examples of Washington and FDR in particular are flawed. FDR's policy on detaining Japanese-Americans in concentration camps is currently used as a reason NOT to detain Islamic people or Arab-Americans in this country writ large. Washington's powers as commander in chief were applied prior to his being President (ie, during the Revolution). His putting down of the Whiskey Rebellion wasn't un-constitutional AND he used his broader powers to pardon and issue clemency afterward. Lincoln's use of suspension of habeas corpus was arguably constitutional (insurrection is included as a reason to suspend it), but SCOTUS at the time disagreed and overturned his order, and he complied.

3) We tried the Japanese for war crimes over many of the things we DID, including the infamous waterboarding, specifically for torture. A number of prominent people, including McCain who was a former POW called the techniques applied to themselves as torture (and to his credit, he tends to consistently state that it is still torture even if we do them).

4) His diametric choice of Miranda rights versus waterboarding is false. We had other options. It only emerges because we are told as a line that KSM was not talking and that we needed new methods to make him talk. His FBI interrogator (Ali Soufan) claims at the time he was talking, prior to being tortured. And KSM (as well as subsequent analysis of information he provided) suggests the qualify of information deteriorated with torture being applied. And the line that waterboarding was being used to produce actionable intelligence makes no sense. We did it over a month long period, during which it was 1) unlikely that anything he knew about would still work because of changes in our security protocols between the time he helped with 9-11 planning and the time we caught him and 2) unlikely that he knew about anything still ongoing (and therefore actionable) as a result and 3) unlikely that he was producing something at the end of that period of torture that was different from what he knew beforehand, but very likely that he was "telling us what we wanted to know". Which he did (by putting Saddam Hussein in on the 9-11 plot). The fantasy that torture consistently and reliably produces actionable ticking time bomb information is only effective and immediate in a world produced by Hollywood script writers tying off plot lines, not the real world.

5) War powers and the tendency of Presidents to use war and associated arguments over national security broadly and commonly (without a major Congressional checks, as foreign policy is for the most part an exclusive domain of Presidential power by design) means that we are constantly at war and Presidential authority remains broad rather than experiencing the shrinkage that Yoo describes (and implies as necessary...without examining why that might be).

6) The most famous example that parallels the Bush program relating to terrorism is probably Andrew Jackson's ignoring the various Supreme Court decisions on Cherokee land owners in the South as he eventually moved to expel them by force. The reason is that Yoo claims that Congress and the Supreme Court are to act as a check against unreasonable accumulations of power by an unlimited executive and to bring the expanded powers during war/crisis time back into line. But these two branches were IGNORED, as repeated court decisions at various levels of the federal court system have been ignored just as blatantly as Jackson's (incorrectly quoted) infamous line "John Marshall has made his decision now, let him enforce it". It is true that Congress basically rolled over and played dead on this issue (for political reasons, it was inexpedient to be painted as a civil libertarian, I mean, a pro-terrorist radical), but the courts certainly haven't with a number of decisions which directly ordered the reversal of policy changes or release of prisoners. The lack of prosecutions on many potential terrorists, the lack of a systematic way to screen and release detainees, the lack of a systematic way to penalize guard and interrogation misconduct, all these are ill-conceived and often ill-executed policies by the Bush administration (and in most cases, the current one as well). But they were also systematically defended in court cases with the force of law, as Yoo and others have taken great pains to attempt to defend the legal arguments that put them in place. I do not begrudge the executive branch for attempting to seize as much power as we let it get away with, but this was not legally speaking, something it has the power to do. It is a historical accident that some of our of most well-regarded Presidents served at times of great strife (or perhaps, it is because of this factor). But the precise policies that they pursued have specific errors which are shown in retrospect to be incorrect and abusive of their position and for which present generations should strive to benefit from these examples. More over, very few of these abuses extended to violating basic human rights as laid out in the Constitution and none extended to causing direct and actionable harms to prisoners detained by the government (other than the detentions themselves). Lincoln and Washington for example went to great lengths to avoid executing deserters of their respective armies, and, with the exception of deprivation of food as a common problem of industrial scale supply chains, prisoners taken on the battlefields of their conflicts were treated quite well in accordance with standard practices at their time, even when questioned by superior officers and spies. They were not beaten and tortured by their captors to gather information crucial to the state's safety and security. The same was true during FDR (or Churchill's) time during WW2, with the lone and powerful exception of the deportation of West Coast Japanese-Americans and the seizure of their abandoned property and assets. These great privations, to my mind, much greater than our present crisis, did not inspire men to seek retribution upon their foes and did not inspire their leaders to command it as unobjectionable should they do so.

If we are to be inspired by these examples of history, let it be for the right reasons and not to say that any policy is made legal by the fact that an emergency deems it so. Yoo's message is that Presidents can do what is necessary to win a conflict, but he also then claims is that those same Presidents did so in very small and measurable ways (and not in the expansive unlimited way he describes). It might be useful to ask why they did not do so.
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