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.

Is THIS torture?

Somehow, in all my ranting about the Bush Administration’s torture of terror suspects, I missed this little nugget of information from the Binyamin Mohamed case in the U.K.

The 25 lines edited out of the court papers contained details of how Mr Mohamed’s genitals were sliced with a scalpel and other torture methods so extreme that waterboarding, the controversial technique of simulated drowning, “is very far down the list of things they did,” the official said.

Whether we get to directly see those 25 lines of redacted material is very much an open question at this point.

But assuming it bears out, it raises an interesting question. Waterboarding’s defenders have said that — despite centuries of tradition calling the practice “torture” — it isn’t really torture. I suspect many of them aren’t being entirely honest; they realize that admitting the practice constitutes torture is admitting that the United States as a matter of policy committed war crimes. What they’re really saying, in my humble opinion, is that torture is justified in the name of national security.

If they’re being honest about waterboarding, however, I wonder if they can possibly make the case that genital slicing isn’t torture. I can’t imagine a sane universe in which that would be the case; the word “torture” would lose all meaning if it doesn’t.

Obama’s smoke and mirrors on state secrets

I’ve been pretty disappointed in President Obama’s embrace of the “state secrets privilege,” which the government — under both him and his predecessor — tried to get torture lawsuits dismissed on the basis of national security concerns. Judges haven’t been able to see evidence that that such lawsuits would actually harm security; they’ve had to rely on the president’s assertion. And that’s bad.

It’s not that I don’t think that national security doesn’t sometimes trump other concerns; but there has been no real process in place to ensure the privilege is used legitimately instead of as a means to cover up government misconduct.

The Washington Post reports today that the Obama Administration is promising to hold itself to a tighter standard when it comes to invoking the privilege:

The new policy requires agencies, including the intelligence community and the military, to convince the attorney general and a team of Justice Department lawyers that the release of sensitive information would present significant harm to “national defense or foreign relations.” In the past, the claim that state secrets were at risk could be invoked with the approval of one official and by meeting a lower standard of proof that disclosure would be harmful.

Which sounds great. Except that if the Bush Administration taught us anything, it’s that you can get whole teams of Justice Department lawyers to sign off on conduct that’s plainly illegal if that’s what the president wants. In the past, the executive branch’s use the state secrets privilege has amounted to: “Trust us.” Under Obama it’s: “Now you can really, really trust us.”

Only we can’t.

This has nothing to do with Obama, personally, and everything to do with the nature of executive power. It wants to be untrammeled. But it should be trammeled, and under the Constitution’s separation of powers it is. When it comes to the state secrets privilege, though, the executive branch is telling the courts: “No need to check us. We got this one.”

That’s not how it should work. And it doesn’t have to be that way: You’ll remember that Arlen Specter a few months back introduced legislation that would allow a judge to privately weigh the evidence that the government’s assertion of the state secrets privilege is, in fact, warranted. It’s a way of keeping the president in check, to make sure he doesn’t use national security concerns to cover up misconduct.

Specter’s bill appears to be going nowhere. That’s too bad. Letting a judge check and balance the president would have minimal harm on national security, but it would mean a great deal for letting citizens hold their government accountable.

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.

Prosecuting the torturers

That’s the topic of my Scripps column with Ben Boychuk this week. My take:

If Republicans like Dick Cheney had their way, there would be no law that CIA agents — or their White House bosses — couldn’t break in the name of national security.

Eric Holder isn’t going after officials, such as Cheney, who authorized the “enhanced interrogation methods” that probably broke domestic and international laws against torture. Holder isn’t even going after very many agents who participated in the interrogation program. Instead, he’s going after the agents who went way too far — the ones who broke the Bush administration’s already-expansive rules about what constituted torture.

The result? We know that some detainees died in custody, and that others suffered mightily. There will be few tears shed, of course; most of these men were terrorists. But our treatment of them is a stain on the national honor.

What Cheney is saying is that even the agents who broke Bush administration rules “deserve our gratitude” and shouldn’t be prosecuted. But if CIA agents shouldn’t be held accountable for breaking the laws, orders and legal guidance set out by Congress and the White House, how can America possibly put limits on the actions of its agents? And how can we trust our government not to misuse that awful power? We can’t.

The truth is that Holder’s investigation doesn’t go far enough. It risks scapegoating lower-level CIA employees who were carrying out orders, while Cheney and others who gave those orders face no consequences. That’s unfair and unfortunate. But Cheney and his fellow Republicans are suggesting that utter lawlessness is acceptable in the name of defeating terrorists. It’s not.

Just in case it isn’t clear, what I’m saying is this: The criticism by Cheney and other Republicans of the investigation gives lie to their assertion that all the Office of Legal Counsel memos justifying torture were actually efforts to keep the CIA within strict legal limits to avoid torture. If that were really the case, then Cheney et al would agree that agents who crossed the lines laid down by the Bush Administration should face sanction of some sort. Instead, such agents “deserve our gratitude.” It’s further proof — if any was needed — that the OLC memos were an exercise in bureaucratic ass-covering.

Torture

I’m still making my way through the CIA Inspector General’s report on torture which was released (with some redactions) yesterday. I’ll have some thoughts, I think, once I’ve given it a closer look. But for now, I think, publius sums things up nicely:

The highlights include:  (1) mock executions; (2) threatened rape of family members; (3) threatened murder of children; (4) kicking and beating a detainee with a metal flashlight to death; (5) threatening naked hooded detainees with power drills; (6) blowing cigar smoke in detainees’ faces until they got sick; (7) waterboarding with massive volumes of water far beyond what OLC authorized (to make it “poignant”); (8) stress positions that nearly caused shoulder dislocations; (9) scraping detainees with stiff brushes; (10) choking a detainee with one’s bare hands until they nearly pass out; (11) subjecting detainees to extremely cold temperatures and water dousing; (12) “hard takedowns” (sometimes in diapers); and (13) beating detainees with butts of rifles (followed by kicking them).

There will be folks who will say that all of this is justified: We’re at war! But it’s still torture. Not “enhanced techniques,” but torture. Plain and simple — let me say it again — torture. Almost certainly in the legal sense, but also (because the law can be an ass) quite certainly in the moral sense.

Go ahead and defend it. But if you try to tell me it’s not torture — that it isn’t what it plainly is — I must conclude you’re either delusional or lying.

You don’t get prosecuted for torture. You get prosecuted for doing it wrong.

This isn’t good:

U.S. Atty. Gen. Eric H. Holder Jr. is poised to appoint a criminal prosecutor to investigate alleged CIA abuses committed during the interrogation of terrorism suspects, current and former U.S. government officials said.

A senior Justice Department official said that Holder envisioned an inquiry that would be narrow in scope, focusing on “whether people went beyond the techniques that were authorized” in Bush administration memos that liberally interpreted anti-torture laws.

Just to sum up: You don’t get prosecuted for waterboarding, or authorizing waterboarding, even though reasonable people have long agreed that waterboarding is illegal torture. But if, say, you didn’t waterboard the right way — well, then the Obama Administration will consider prosecuting you.

I agree with Andrew Sullivan:

But if the Obama administration does not investigate those really responsible for war crimes, and scapegoats a few sadists down the line instead, then they risk retroactively justifying the crimes they ran against.

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?

Somebody owes Nancy Pelosi an apology

Remember a couple of months ago, when Republicans got very, very angry at Nancy Pelosi’s insistence the CIA had misled her and Congress about its actions in the war on terror?

Oops:

The director of the Central Intelligence Agency, Leon E. Panetta, has told the House Intelligence Committee in closed-door testimony that the C.I.A. concealed “significant actions” from Congress from 2001 until late last month, seven Democratic committee members said.

In a June 26 letter to Mr. Panetta discussing his testimony, Democrats said that the agency had “misled members” of Congress for eight years about the classified matters, which the letter did not disclose. “This is similar to other deceptions of which we are aware from other recent periods,” said the letter, made public late Wednesday by Representative Rush D. Holt, Democrat of New Jersey, one of the signers.

In an interview, Mr. Holt declined to reveal the nature of the C.I.A.’s alleged deceptions,. But he said, “We wouldn’t be doing this over a trivial matter.”

I’m shocked — shocked! — the CIA would lie about its activities. Anyhow, I wonder if any Republicans or conservatives will apologize to Pelosi for being right.

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?