Torture advocate John Yoo is again misleading the readers of the Philadelphia Inquirer

I’m a couple of days late on this, but I’ve got to point out that torture advocate John Yoo has — once again — mislead his readers in the Philadelphia Inquirer.

Yoo’s Sunday column was the latest in his series of public pronouncements on his “vindication tour” since the Justice Department decided not to sanction him for his work providing a legal rationale to torture terror suspects during the Bush Administration.

This time, his distortion comes in a description by the DOJ’s Office of Professional Responsibility, the office that investigated him for possible ethical violations in writing the torture memos:

Not only did OPR’s report reflect pure incompetence, it was obviously biased. OPR selectively tried to persecute only a few officials in the Office of Legal Counsel. OPR failed to interview, and reach conclusions on, the work of then-Attorney General John Ashcroft and other high-ranking officials, even though they received several briefings on our memos and approved them.

This is a finely phrased sentence that is narrowly accurate but broadly misleading. It’s true that the OPR “failed to interview” John Ashcroft and other high-ranking officials — but it wasn’t out of bias or incompetence or any intent to give Yoo the bum’s rush that it failed to do so. Instead, Ashcroft and other high-ranking officials refused to be interviewed by OPR. These were officials who, presumably, could’ve defended Yoo’s memoranda — but instead of noting the omerta approach that may have saved his bacon, Yoo tries to paint a (false) picture of the OPR dropping the ball.

It’s misleading. But we’re used to that from Yoo, aren’t we? He also misleads here:

Attorney General Eric Holder allowed his OPR to conduct a persecution that would placate the far left of the Democratic Party and its representatives in Congress – at the expense of the nation’s security.

This is Yoo again repeating his canard that the Obama Administration was pursuing him for unethical conduct, doing so as a sop to anti-torture lefties. But I’ve said this before and it bears repeating: Yoo’s work was so bad that the OPR investigation started during the Bush Administration — and the initial, much more devastating findings, were also reached during the Bush Administration. Yoo’s so-called “smear job” came under the Republican president. The so-called “vindication” came under the Democratic president. Yoo’s depiction of events here is simply dishonest. And he surely knows it.

There’s a difference between making bad, silly arguments and making misleading and dishonest ones. Yoo’s columns for the Inquirer consistently fall on the wrong side of the line. You’d think the Inky would have more care for its own credibility.

Torture advocate and Inky columnist John Yoo advocates killing unarmed civilians

Near the end of today’s Wall Street Journal “vindication” piece, John Yoo says that he wrote the torture memos to give presidents the latitude to fight the war however they see fit. And though he doesn’t say so directly, he suggests that presidents should be allowed to let soldiers execute unarmed noncombatant civilians in the name of military necessity.

Here’s how Yoo puts it:

Mr. Obama is fighting three wars simultaneously in Iraq, Afghanistan, and against al Qaeda. He will call upon the men and women serving under his command to make choices as hard as the ones we faced. They cannot meet those challenges with clear minds if they believe that a bevy of prosecutors, congressional committees and media critics await them when they return from the battlefield.

This is no idle worry. In 2005, a Navy Seal team dropped into Afghanistan encountered goat herders who clearly intended to inform the Taliban of their whereabouts. The team leader ordered them released, against his better military judgment, because of his worries about the media and political attacks that would follow.

In less than an hour, more than 80 Taliban fighters attacked and killed all but one member of the Seal team and 16 Americans on a helicopter rescue mission. If a president cannot, or will not, protect the men and women who fight our nation’s wars, they will follow the same risk-averse attitudes that invited the 9/11 attacks in the first place.

This is a vague piece of writing. What really happened in 2005? A long piece in the Army Times describes a book by Michael Luttrell, the sole Seal survivor of that incident.

According to his book’s account, the SEALs thought they had only two choices: kill the three goatherds, or let them go.

As Luttrell relates in “Lone Survivor,” Murphy first tried to raise the SEAL tactical operations center at Bagram on the radio for guidance. He couldn’t connect. Then Murphy made an “on-scene call”: He put the decision to a vote. He would not impose his decision on the others.

Axelson voted to kill them, Luttrell said. “We’re on active duty behind enemy lines, sent here by our senior commanders,” the book quotes him as saying. “We have a right to do everything we can to save our own lives. The military decision is obvious. To turn them loose would be wrong.”

Murphy voted to let the Afghans go. Dietz abstained. “I don’t really give a s— what we do,” Dietz said, according to Luttrell. “You want me to kill ’em, I’ll kill ’em. Just give me the word. I only work here.”

Then, Luttrell said, Murphy then warned his men that if they killed the goatherds, they would have to report the deaths, and the Taliban would publicize them, as well.

“[T]he U.S. liberal media will attack us without mercy,” Luttrell quotes Murphy as saying. “We will almost certainly be charged with murder.”

Even at the time he made the decision, Luttrell said, he would have voted to kill the three goatherds if he was assured that he and his teammates would not get into trouble.

Within two hours of letting the goatherds go, the special operators found themselves in a fight for their lives, all but surrounded and massively outnumbered by an estimated 140 Taliban fighters.

So the Seals had a choice: Kill three unarmed civilians who’d demonstrated no hostile intent? Or do nothing and risk detection? Luttrell now says they should’ve killed the goatherds. But forget about the “liberal media” — a convenient if unlikely scapegoat: Would the Seal team have been legally justified in executing the unarmed civilians?

“The killing of non-combatants under the circumstances described is never legally justified unless as an act of self-defense,” Bolgiano said. “Use of deadly force in self-defense is reasonable when responding to demonstrated hostile intent, or a hostile act, which presents an imminent threat of death or serious bodily injury. While imminent does not mean immediate, it is quite a stretch to say that since the shepherds may tip off local Taliban as to the presence of the SOF [special operations forces], then it would be OK to kill them in self-defense.

“On the other hand, if the SOF had a reasonable belief that, in fact, these shepherds were acting as Taliban lookouts or sentries, then deadly force may be authorized. Once, however, any threat (combatant or non-combatant) becomes a prisoner, then one can’t simply execute them for convenience.”

Listen: Luttrell and his colleagues faced a crappy situation. But killing unarmed goatherds would’ve been murder. And in any case there’s a saying: Bad cases make bad law.

And in any case, Yoo is once again being disingenuous: He didn’t write his memos to help the president give legal and political cover for individual decisions made in the heat of the moment by a few individual soldiers — the memos never contemplated such situations. His memos instead helped justify torture in a non-combat situation, where terrorist suspects were already under the control of American officials … who had the time and wherewithal to draft lengthy legal memoranda. It’s a different situation, one that had relatively bright lines until the Bush Administration got Yoo to help muddy them up.

Torture advocate and Inky columnist John Yoo is a big fat liar

Torture advocate (and Inquirer columnist)  John Yoo takes to the pages of the Wall Street Journal today to crow about his “vindication” in a Justice Department investigation that decided he was merely incompetent, not willfully unethical, in signing off on the Bush-era torture memos. And true to Yoo’s style, he distorts and politicizes the situation to create an entirely false narrative of his own victimization.

Obama came to office, he said, planning to break sharply with Bush-era precedents on torture:

In my case, he let loose the ethics investigators of the Justice Department’s Office of Professional Responsibility (OPR) to smear my reputation and that of Jay Bybee, who now sits as a federal judge on the court of appeals in San Francisco.

This would seem to suggest that Obama launched the OPR investigation of Yoo and Bybee. But that’s not true: Yoo’s work was so bad that the OPR investigation started during the Bush Administration — and the initial, much more devastating findings, were also reached during the Bush Administration, as Yoo himself demonstrates when talking about the timeline:

Attorney General Holder could have stopped this sorry mess earlier, just as his predecessor had tried to do. OPR slow-rolled Attorney General Michael Mukasey by refusing to deliver a draft of its report until the 2008 Christmas and New Year holidays. OPR informed Mr. Mukasey of its intention to release the report on Jan. 12, 2009, without giving me or Judge Bybee the chance to see it—as was our right and as we’d been promised.

Get this straight: The so-called “smear job” came under the Republican president. The so-called “vindication” came under the Democratic president. I have my disagreements with that, but for Yoo to portray this process as “fighting off an administration hell-bent on finding scapegoats for its policy disagreements with the last president” is purely and completely dishonest.

John Yoo is ‘vindicated’: Presumably he gets to keep his Inquirer job

Back when torture advocate John Yoo started writing columns for the Philadelphia Inquirer, opponents were given one hope: If Yoo ended up facing criminal charges or professional sanction for his discredited advice allowing the torture of terror suspects, the Inquirer might — maybe — reconsider publishing him. Inky editorial page editor Harold Jackson told me as much last year:

“We have not reached that point. The description of him as a war criminal would not be accurate. He’s a member of a distinguished university faculty with interesting things to say,” Jackson said. “If at some point it goes beyond that, we’ll have more concern about our relationship to him.”

So much for that. Late on Friday afternoon, the Justice Department’s Office of Professional Responsibility announced that Yoo didn’t commit “professional misconduct” — i.e. there’s not enough proof he acted unethically — and thus won’t face penalties or disbarment initiated by the Justice Department.

The Wall Street Journal claims in an editorial today that Friday’s decision amounts to “vindication” for John Yoo; the upshot of the Justice Department memo is that John Yoo didn’t commit ethical violations — it was a “close question”: Instead he produced a “flawed” justification for torture because he was too blinded by his own ideology to provide a fair legal analysis. The money paragraph:

The reason that John Yoo became famous enough to get his op-ed job at the Inquirer is because of his work on the torture issue in the Bush White House. But the Bush White House eventually conceded Yoo’s memos were flawed and withdrew them; the Justice Department has now pretty firmly repudiated the work and castigated Yoo’s judgement. It would seem that the Inquirer could find a smart conservative writer whose qualifications for the job don’t include clumsy and discredited justifications for war crimes. But maybe those folks are in short supply these days.

Then again, maybe the Justice Department memo enhances John Yoo’s standing. After all, the memo above suggests Yoo put “loyalty to his own ideology” above professional competence. That might well be why Brian Tierney has John Yoo writing for the Inky op-ed pages.

Torture advocate John Yoo is misleading the readers of the Philadelphia Inquirer

I understand that I’m not always going to like what Torture Advocate John Yoo(TM) says in his Inky column. Is it too much to ask that it be accurate and up-to-date on the facts?

Today’s column asserts the Failed Christmas Day Crotch Bombing happened because Obama has been “soft” on security and failed to take the fight to the terrorists. But in his recommendations to Obama, Yoo says something exceedingly curious:

Why, for example, are passengers from nations with lax security or heavy terrorist activity, especially those from the Middle East or Africa, not subjected to special scrutiny? Is it for fear of causing “offense” to international public opinion?

Why is this curious? Because, uh, remember this?

All travelers flying into the U.S. from foreign countries will receive tightened random screening, and 100 percent of passengers from 14 terrorism-prone countries will be patted down and have their carry-ons searched, the Obama administration notified airlines on Sunday.

All passengers from countries on the State Department’s “State Sponsors of Terrorism” list — plus all passengers from other “countries of interest” such as Nigeria, Pakistan and Yemen — will receive “full body pat-down and physical inspection of property,” the official said.

That’s news from ONE WEEK AGO. The Obama Administration is doing exactly what John Yoo wants them to be doing in this case, and Yoo is misleading the readers of the Philadelphia Inquirer into believing otherwise.

Deborah Solomon’s interview with John Yoo

One person more contemptible than torture advocate John Yoo? Deborah Solomon. I’ve got no idea why she’s got such a prime spot of real estate in the New York Times. When her interviews aren’t vapid, they’re confrontational only for the sake of insult, never for the purpose of (oh, you know) eliciting information.

John Yoo doesn’t want a New York trial for Khalid Sheikh Mohammed

And he might have good reasons. It’s hard for me to know, because as always, the Bush Administration’s torture advocate and enabler simply doesn’t have any credibility. Here’s an early line in his Wall Street Journal op-ed opposing the Obama Administration’s decision to give KSM a civilian criminal trial in New York:

It is a presidential decision—one about the hard, ever-present trade-off between civil liberties and national security.

And here’s why Yoo has no credibility: Go back and read the memos he wrote, the ones saying a president had the right to torture, to turn the United States into a lawless battleground against terrorists, to even suspend the First Amendment if he so chooses. And ask yourself: Has there been a post-9/11 issue in which John Yoo seemed to truly and earnestly balance civil liberties against national security? Or has he thrown civil liberties overboard every time? There’s an easy answer to that question.

Here’s the thing: Over time, I’ve come to suspect that rigorously governed military tribunals — ones that adhere rigorously to federal and international laws of war — might be the best way to try suspected terrorists. A good process can give terror suspects their day in court while holding legitimate national security concerns in balance — and there is the precedent, set by FDR during World War II. Foreigners accused of making war on the United States typically haven’t been granted the same rights as Americans under our system of justice.* And I’m troubled that the Obama Administration has set up a multi-tiered system of justice that gives terror suspects more rights … so long as they’re less likely to succeed at trial. I’m not a fan of kangaroo courts. Better to have one set of transparent rules for everybody.

* This is separate in my mind from the issue of whether New York should host the trial. Sure it should. That’s where the attack happened; it’s where justice should be delivered. KSM is not a supervillain. He’s not going to use his magneto powers to break out of prison and again make war on the U.S.

But I’d have an easier time taking seriously the argument of so many folks arguing for a military tribunal because we’re at war! if so many of the same people — like torture advocate John Yoo — weren’t also advocates for disregarding U.S. law and international war crimes law regarding torture because this is a different kind of war! The laws of war apply only when they’re to our advantage, it seems.

As it is, the decision to hold the trial in civilian courts in New York seems, as they say, to have made “all the right enemies.” Which makes me inclined to support the decision. Which is, frankly, a lousy reason to support it.

John Yoo’s lies of omission

John Yoo, torture advocate and enabler, back in the Inky with his latest op-ed. He is, predictably, crying foul over Eric Holder’s investigation of CIA officials who may have crossed the torture line while interrogating terror suspects.There are two major notes to make here:

• Yoo places Obama in a long line of Democratic presidents who betrayed the country’s security by reining in the CIA. Curiously, though, he never mentions why the CIA was reined in. Here’s a sample passage:

The Carter presidency serves as a warning. Attacking “Watergate, Vietnam, and the CIA,” Carter came to office determined to clean house. He and his CIA director, Adm. Stansfield Turner, fell in love with technical means of intelligence-gathering, such as the real-time photos sent by reconnaissance satellites. They saw little need for information gathered by spies and informants. Turner promptly took a buzz saw to the division in charge of covert operations, eliminating 820 positions out of 4,730.

The message was clear, and as a result CIA agents became risk-averse. After all, if you might be fired or prosecuted for doing something, the safest thing to do is nothing. America’s ability to gather human intelligence and conduct covert operations swiftly fell apart. The CIA failed to predict the fall of the shah. Iranian students – one of them now the president of Iran – took U.S. Embassy officials hostage. A covert operation to rescue them failed miserably, killing eight Americans.

Well, wait a minute. What was the “something” our intelligence services were doing? Was it merely trying to defeat the Soviet menace? Or was “something” else going on?

The CIA contracted a Mafia boss to murder Fidel Castro, sent biotoxins to the Republic of Congo with orders to poison Patrice Lumumba and tested LSD on unsuspecting citizens (one of whom jumped out of a window to his death). It fomented coups and bloodshed against democratically elected governments, while the National Security Agency, in coordination with the major telegram companies, read every single telegram coming in or going out of the country for three decades. The FBI infiltrated peaceful antiwar groups, breaking up marriages of activists with forged evidence of infidelity, while surveilling civil rights leaders with an assortment of bugs and break-ins. It even attempted to blackmail Martin Luther King Jr. into committing suicide, shipping him tapes of him midcoitus with a mistress and a note that said, “There is but one way out for you. You better take it before your filthy, abnormal fraudulent self is bared to the nation.”

Ah. Right. The CIA, NSA and FBI were spying on Americans, testing drugs on Americans, ruining the lives of Americans … all in the name of national security. It’s not that the CIA was “doing something” that President Carter — like President Ford before him, incidentally, and with the cooperation of Congress — reined in: It’s that the intelligence community was doing bad things. They needed reining in.

Kind of like now. Which leads to my second point:

• The CIA officials being investigated aren’t the ones, like Yoo, who justified and enabled torture of terror suspects. It’s not even all or most of the CIA officials who participated in waterboarding and other torture techniques of terror suspects — as long as they stayed within the legal guidelines offered by the Bush Administration (and created in part by Yoo) Eric Holder doesn’t want to go after them.

The people who face investigation are the ones that violated the already-expansive standards set by Yoo and the Bush Administration. In other words: The law drew a line on torture. Yoo and the Bush Administration redrew it with a much wider boundary. And the people who are under investigation are the ones who crossed those new, wider lines.

And Yoo is defending those agents anyway.

Yoo can’t have it both ways. He can’t offer legal guidance that ostensibly is to guide CIA agents from crossing the real line into torture while at the same time exhonerating the agents who disregarded his guidance. If he does, what he’s frankly admitting is that his legal guidance wasn’t worth the paper it was written on — that it was simply a cover-your-ass document meant to make it seem as though torture had legal justification. In reality, these guys were going to do what they wanted to do, whether it was legal or not.

John Yoo’s selective history

Torture advocate John Yoo is either dishonest or ignorant. But you knew that.

The latest evidence is on display in his Sunday column for the Inquirer. There, he urges Republican senators to vote against the confirmation of Supreme Court nominee Sonia Sotomayor as a threat to the Constitution — and because the GOP has too long bowed before more aggressive Democrats on such issues.

Yoo:

The Sotomayor vote is about ideology, not race. It is the culmination of decades of politicization of court appointments that was launched by Democrats with only fitful responses by Republicans.

In 1987, Senate Democrats voted down Robert Bork, a brilliant federal appeals judge and former Yale law professor, solely because of his legal views.

In 1991, the same crew ambushed Clarence Thomas (for whom I served as a law clerk) with outrageous claims of sexual harassment, and failed to stop his confirmation by only four votes.

In 2003, Democrats used the filibuster for the first time in U.S. history to oppose a slate of nominees to the lower courts – several of them minorities and women with high court potential.

Le’ts put aside the “ambush” of Clarence Thomas and the unfair, dishonest besmirching of Anita Hill. I’m most interested in Yoo’s last point — that Democrats were unprecedented in their blocking of nominees to the lower courts. Except they weren’t. Republicans did it to Bill Clinton just a few years earlier — the difference being that they didn’t use the filibuster. Instead, they — Jesse Helms in particular — used “holds” to keep nominations from coming to an up-or-down vote. They were the ones who set the precedent.

And if you believe history started before Robert Bork, there’s the little matter of Republicans helping block President Johnson’s nomination of Abe Fortas to be Chief Justice way back in the 1960s. They did get some help from “Dixiecrats” — Southern Democrats like Strom Thurmond who later switched parties.

Yoo’s omissions create a narrative of Republican victimology. But both sides have played hard on judicial nominations, and they’ve done so for a long time. Yoo probably knows better. But that’s not stopped him before, has it?

John Yoo’s other crimes? He’s dreadfully boring, dishonest and sloppy

John Yoo — and let his name never appear in these parts without “torture advocate” appended to them — finally made it back to the op-ed pages of the Inquirer yesterday. There’s been a lot of protest against Yoo’s column-writing gig at the Inquirer because a lot of people (reasonably, I think) don’t really want to spend their Sunday mornings curled up with a newspaper featuring the ponderings of a man credibly accused of war crimes.

But there’s another reason to hate the Inquirer’s (or rather, Brian Tierney’s) decision to give Yoo a plum gig, and it’s this: He’s dry to the point of unreadable.

Also he’s dishonest. Probably sloppy. But let’s stick with unreadable for a second.

Yoo’s prose reads like a lawyer trying to graft a legal memorandum onto a newspaper column format. Try this on for size:

Consider the recent decision in North Austin Municipal Utility Dist. v. Holder.

North Austin presented a case of “a small utility district raising a big question – the constitutionality of Section 5 of the Voting Rights Act,” Chief Justice John G. Roberts Jr. wrote. Under the 1965 act, Congress prohibited denying the right to vote because of race and abolished tests, taxes, and other means of disenfranchising Southern blacks. States that had used these despicable methods were forbidden from changing election law without Justice Department approval.

Justice John Roberts wrote a lot in his opinion upholding — for now — the right of Congress to pass the voting law it did. But what part does Yoo quote? The description of the case (which any smart writer would reasonably paraphrase) instead of a line or lines that gets to the heart of Roberts’ thinking about why the law should be upheld.

Yawn. What boring writing.

As for dishonest, I go to Yoo’s decision to attack Supreme Court nominee Sonia Sotomayor with a truncated quote:

The panel included Supreme Court nominee Sonia Sotomayor, who has praised deciding cases with “empathy” and has said that “a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male” judge.

Let’s look at the full sentence that Sotomayor spoke, instead of Yoo’s truncated version:

Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.

Perhaps I’m looking too much at nuance, here, but “I would hope” — which Sotomayor said, but Yoo omitted — changes the context of the quote to me. Yoo makes Sotomayor sound like she’s asserting wise Latina superiority, when the full sentence (and the fuller speech that she gave) is more humble, wrestling with how gender and race might affect one’s judicial outlook.

The nuance might be lost on Yoo — no surprise there — but it’s kind of critical. It’s the difference between Sotomayor being a racist and her pondering (perhaps clumsily) what difference her background might make to her judging. Yoo — no surprise here — weights his quotation in favor of depicting her as a racist.

And try as I might — and I’m willing to be corrected on this count — I can’t find evidence that Sotomayor has ever praised “empathy” as a desirable quality in judges. President Obama has said empathy was a quality he desired in a nominee (so presumably Sotomayor has that quality in a fashion the president desires) but I can’t find a quote from her saying the same thing.

How are the Inky’s readers served by John Yoo again?