The Justice Department of the United States has found that the Bush administration lawyers, notably John Yoo, are not guilty of professional disbarment over their involvement writing legal opinions (aka the torture memos) concerning enhanced interrogation techniques. John Yoo should not only face disbarment for role in assisting the Bush administration to subvert not only the constitution, but also International and Military Law, he should also be held criminally and civically liable.
Is it the Office of Legal Counsel’s role to twist domestic, international and military law to serve the President and his Administration’s illegal agenda, or is it to uphold the law? According to the White House website, the Department of Justice mission is “to enforce the law and defend the interests of the United States according to the law; to ensure public safety against threats foreign and domestic; to provide federal leadership in preventing and controlling crime; to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans. “[1] The OLC holds a responsibility to counsel the President on the legality of an issue, not to find legal maneuvering and distortion of language to assist implementing criminal action which is exactly what Mr. Yoo did.
Under the Command of Responsibility, the doctrine of hierarchical accountability in cases of war crimes established under the Hague Convention (1907) makes John Yoo criminally responsible in his complicity in crimes against humanity, namely torture which is deemed illegal under domestic, military and international law. International Law also commands that any person involved in ordering, allowing and even insufficiently preventing and prosecuting war crimes is criminally liable under the command responsibility doctrine.
In 2006, a complaint against John Yoo and thirteen others under command responsibility was filed with German Federal Attorney by Wolfgang Kaleck on half of eleven detainees and 30 human rights groups. Scott Horton, a human rights activist and lawyer stated “the possibility that the authors of these memoranda counseled the use of lethal and unlawful techniques, and therefore face criminal culpability themselves”[2]. As to General Mukasey’s refusal to investigate or prosecute anyone involved with these legal opinions, Jordan Paust of the University of Houston’s Legal Centre stated “it is legally and morally impossible for any member of the executive branch to be acting lawfully or within the scope of his or her authority while following OLC opinions that are manifestly inconsistent with or violative of the law. General Mukasey, just following orders is no defense”[3]
The most disturbing aspects of John Yoo’s actions are reflected in his debate with University of Notre Dame’s law professor, Doug Cassel. Yoo was asked a hypothetical “"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?", John Yoo replied "No treaty." The amount of gall and complete disrespect to all law, domestic, military and international, shown here is frightening as this was stated by a man who was advising the President of the United States on how to avoid accountability regarding subversion of the law.
Obama’s recent defense of John Yoo and the Justice Department’s legal team stating they "had used flawed legal reasoning but were not guilty of professional misconduct"[4] is shameful. I distinctly recall hearing “we are the change we are waiting for” and “change you can believe during Obama’s campaign, but have not seen any evidence by this administration.
Obama has now granted immunity to the CIA officials who relied on the “torture memos” to justify their actions. Manfred Nowak, UN Special Rapporteur on Torture stated that Obama’s grant of immunity is most likely a breach of international law. Obama’s mantra of not dwelling on the past, but move onto the future ideology is a slap in the face to the human rights movement. Where would the world be if we had moved to the future and not tried, convicted and punished the perpetrators of the Holocaust? I guess if Obama wants to play amnesia, we can all imagine a United States not sown in the fabric of democracy and no longer a nation of human rights and civil freedoms and liberties.
[1] The White House, the Executive Branch, http://www.whitehouse.gov/our-government/executive-branch (February 20, 2010).
[2] Balkanization, The Return of Carl Schmitt, http://balkin.blogspot.com/2005/11/return-of-carl-schmitt.html
[3] Just Following Orders? DOJ Opinions and War Crimes Liability by Jordan Paust, Jurist, February 18, 2008
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