Notes From Babel

In Defense of John Yoo

with 2 comments

After having read through much of Yoo’s 81-page memo, it is even clearer that Painter’s conclusions are premeditated. The memo amounts to a treatise on every imaginable domestic and international source of authority respecting the treatment of detainees, both constitutional and statutory, and even including reviews on maritime, maiming, and interstate stalking laws. In the time I could spare from my day job reviewing the memo, it is sound legal analysis, drawing the conclusion that the text and structure of the law in light of the factual background indicate that the relevant authorities do not extend to alien enemy combatants held at Gitmo.

The paragraph that Painter criticizes comes at page 80, in a section titled “Defenses,” in which Yoo explains what arguments might be made in the event that the foregoing interrogation authorities were found to apply to Gitmo detainees (which, as Yoo had just explained in the previous 74 pages, they did not). Of necessity, any discussion on the defenses available in such unique circumstances will be conjectural, based on high levels of abstraction of standards applicable in only loosely-related analogues — criminal civilian contexts, for example. But Yoo takes as good a crack at is as can be asked of any lawyer called upon to opine on legal and moral philosophy and political theory. For his efforts, he now receives steady lashings from folks like Painter.

As for the self-defense argument about which Painter thinks so little, I have to agree with Yoo. As I said before:

The purpose of government is to protect rights, and in order to do this, it must first ensure its own survival. We do not reach the question of whether and how much to protect the rights and liberties of any individual (let alone foreign enemy combatants) until the political order can first reasonably assure those components necessary to its self-preservation. Thus, in the case of furthering such a prime directive as preventing further terrorists attacks within its own borders, as a matter of first principles a nation need not be concerned at all with notions of due process.

The common response to such arguments is that we may win the battle but lose the war by forfeiting our decency. Our leaders are not permitted the luxury of giving moral evils a wide berth and comfortable margins of error. They must skirt the ethical line in carrying out their prime directive of keeping us safe. The continued existence and prosperity of our nation requires both decency and not being blown up. One would be loathe to give up on either, but pressed, only one of those things is given to diminution.


Written by Tim Kowal

April 2, 2009 at 6:12 am

2 Responses

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  1. I have made clear that I am not particularly interested in going after Professor Yoo or any other lawyer who worked on these memos. A lot of lawyers were involved, not just those whose names appear on the memos. We do need to think, however, about what went wrong and why.

    What I am interested in is an Executive Order and then an Act of Congress to make sure torture renis never considered to be an option again.

    We face adversaries who distort the laws of God and the laws of man to condone acts of violence, including terrorism and torture. Even in the heat of battle, we need to think about what we are fighting against and what we are fighting for.

    Richard Painter


    April 2, 2009 at 1:09 pm

  2. It has been said that what we need is an investigation of what really happened — which Obama has indicated he is not prepared to initiate. Without the facts, we are left swimming around in fears and assumptions.

    You are of the mind that something “went wrong” because you are unequivocally opposed to torture and wish to ensure it is “never considered to be an option again.” I respectfully disagree with that view, although there are strong arguments to be made for it. Not among them is that which blithely paints legal arguments against it as “inept” and “obvious[ly]” wrong on the basis of a “most casual reader” standard without any further exposition.

    Tim Kowal

    April 2, 2009 at 3:38 pm

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