Tuesday, April 01, 2008

Hotel Guests

In 2004, just after I got my acceptance letter from Boalt, Prof. Yoo published an op/ed in the LA Times where he claimed that we shouldn't treat terror suspects captured on the battlefield as hotel guests. I wrote a letter to the editor (published) with a zinger: "The Hanoi Hilton wasn't exactly a 5-star hotel."

That op/ed takes on a new meaning today. Prof. Lederman (at Balkinization) has posted copies of the 2003 Torture memo here and here. The 2002 memos, previously released, related to the CIA's use of interrogation techniques. This one deals with the military. Off the top of my head I couldn't see any differences in the rationales, but Lederman thinks this one is far worse. Stay tuned.

I wonder what's more American, using Super Delegates during a party convention or beating the crap out of a prisoner?

UPDATE: Vanity Fair has a timely story by Phillippe Sands, who debated Prof. Yoo on Halloween 05 in SF.

I should add that my criticism is limited to the arguments and positions of the memos, op/eds, etc., and not Prof. Yoo the professor.

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Blogger Patrick said...

I am very conflicted with respect to this issue.

On one hand, I really like the fellow who teaches my con law class. Tremendous sense of humor, knowledgeable, articulate, etc. . . he even answers his email within 20 minutes -- no exceptions. JY really is one of the better professors I have ever had, in any subject.

On the other hand, the timbre of the memos posted at Balkinization makes me want to vomit. They do not contain the vision of the country in which I want to live, or the law I want to live under. There seems to be a consensus of scholars who question the memos on their legal merit, but what bothers me is their moral (lack of) merit. They amount to an enthusiastic response to a pentagon that seeks excuse for shameful, immoral activities.

Part of me would like to separate the scholarship from the individual, which I suspect is a very academic reaction on my part. But it is not an academic problem. The advancement of the policies in the torture memos is anything but academic in effect. They screw up the lives of living, breathing human beings. They demean the already embarrassing conception of America abroad. And they raise real and disturbing questions about the moral integrity of some of the individuals who make up our government.

And yet, the guy just isn't an ogre. Nor is he dumb, or insensitive, or cold, or inhuman. He is in fact a witty, funny, engaging, and knowledgeable professor.

How do you make sense of a situation in which you simultaneously want to invite a guy to your dinner party, and at the same time burn all his books?

4/01/2008 7:27 PM  
Anonymous Anonymous said...

Dude, Patrick. When someone advocates evil in his work, you have to judge the man by his work, not by his jolly demeanor. Just because someone is personable and witty doesn't mean he's not a monster. What do you expect? That John Yoo would drool blood? That he would publicly eat sauteed baby intestines before each class? Adolf Eichmann was probably a pretty nice guy too. Read Hannah Arendt's "The Banality of Evil." You might stop wondering at the fact that John Yoo just doesn't *seem* like a monster.

4/01/2008 8:54 PM  
Blogger matt said...

First, I need to say this: answers his email within 20 minutes and no exceptions? So what you're saying is, if I'm in the White House, and it's 3am, and my children are asleep, and there's a phone ringing, I can email J.Yoo and he will reply with advice within 20 minutes? That's awesome.

Now, on to the important thing. The 'banality of evil' comment completely misses Arendt's point. The entire point of Arendt's essay and subsequent book was that Eichmann just sat there, day to day, doing his job, without really evaluating it, morally. The idea was precisely the opposite of what Yoo does.

Eichmann didn't think about what he was doing - he just obeyed orders and went on his merry way. Yoo, on the other hand, being an academic, has presumably put a great deal of thought into what he says. (If my presumption is wrong, it raises troubling questions about how Yoo gained his academic stature and position.)

Calling it 'banality of evil' is completely wrong. The banality of evil is about moral thoughtlessness or a lack of moral consideration altogether, not moral reprehensibility.

Having said all that, I agree with judging a man by his work. Even some of those whom history has judged to be the worst may have seemed fun to go out and have a beer with.

4/01/2008 9:14 PM  
Blogger Patrick said...

Hahahaha, matt, if you if are in the White House when the phone rings, the best advice anyone could email you would be to get the hell out of there before someone wakes up and catches your lanky ass! Even JY would tell you not to wait 20 minutes just to prove me wrong!

4/01/2008 9:36 PM  
Blogger matt said...

maybe I should have clarified that the person in the White House was a hypothetical "I"...

4/01/2008 9:44 PM  
Anonymous Anonymous said...

I don't see a conflict between someone being personable, interesting, and pleasant ... and also fully beliving in and advocating for an agenda you find horrifying or even evil.

Leaving aside the point that almost everyone believes in their own mind that they're right, if evil people were all apparently and obviously evil, evil would be a lot less scary than it is.

4/02/2008 10:38 AM  
Anonymous Anonymous said...

Yoo Memo: "If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network. In that case, we believe that he could argue that the executive branch's constitutional authority to protect the nation from attack justified his actions."

Shorter Yoo: The Prez. can do whatever he wants because he is above the law. Torture/shmorture.

Regardless of how nice Yoo is in person, according to my moral standards he is a sorry excuse for a human being. I'm ashamed he teaches at Boalt. I'm even more ashamed that some of my fellow students don't see anything morally wrong with his views.

4/02/2008 10:49 AM  
Anonymous Anonymous said...

I'm surprised to hear a rave review of JY as a teacher. I had him several years ago and found him uninspired and uninspiring. Of course, people can get better with experience. And his intelligence was never really in doubt.

Calling him evil, while wildly entertaining, probably isn't fair. To question why somebody who views the Constitution as a mere obstacle to total executive power is teaching Con Law--that seems fair. Also, he is evil.

--Maxwell Demon

4/02/2008 10:53 AM  
Anonymous Anonymous said...

In the WP op ed Yoo states the analysis was nearly boilerplate for what the justice department would have told the president, no matter which attorney's wrote the actual memo. He suggests the later withdraw from the memos was a political response to the public's reaction, more than anything else. In other words, he suggests this has been the justice dept's unarticulated position all along. If that is true, then he is more like a regular guy doing his job than an evil ogre.

Anyway, cast me in the minority with patrick. I found Yoo's personality and classroom presence unnerving when compared to the controversy around him.

4/02/2008 11:00 AM  
Anonymous Anonymous said...

@11am—I think you’re being too generous. Yoo is an adult who understands the consequences of his actions. Justifying/encouraging torture is the kind of job better people would quit. Nobody was holding a gun to his head—which, according to his memo, does not constitute torture.

4/02/2008 11:19 AM  
Anonymous Anonymous said...

Is John Yoo evil? I think the above posters are not putting enough thought into the issue.

First, I think reasonable people can disagree whether situations exist in which torture might be justified. The extreme example, of course, is the ticking time bomb scenario, in which an obstinate prisoner knows the hidden location of the bomb. Although torture makes me extremely uncomfortable, I can't categorically rule out the possibility of sanctioning it.

Second, I don't think it's fair to compare Yoo to Eichmann. The U.S. isn't running gas chambers, we're not rounding up thousands upon thousands of members of a particular ethnic group. (Of course, it's worth noting that Germany wasn't doing these things in 1933 either--these things have a way of being a slippery slope.)

So I don't think Yoo is evil. I definitely disagree with his lust for a strong executive, but his views, while possibly dangerous, are not beyond the pale of human dignity.

I also think there is a lesson here. Be careful in choosing your client and think about limiting your zealous advocacy (there are limits!). Think about the consequences of your actions.

While I don't think there is any legitimate reason for disrupting Yoo's tenure as professor, I couldn't be more pleased that every time Yoo hears his name called, a moment of unpeace befalls him.

4/02/2008 12:51 PM  
Anonymous Anonymous said...

Evil, huh? Decide for yourself.

Here's a picture that Harper's Scott Horton posted today, on what Yoo's work led to at Abu Ghraib (WARNING: disturbing picture, so don't click on it if you're squeamish please)


I'd like to see John Yoo sit down and justify his memo to the families of people killed during interrogation.

4/03/2008 1:35 PM  
Anonymous Anonymous said...


I don't think that's fair to Yoo. As I understand it, the Yoo memos were written in response to 9/11 and intended to aid in national self-defense. I think many of us could agree that the invasion of Iraq had nothing to do with self-defense and the Abu Ghraib abuses were not necessary to prosecute the war there. So, for Abu Ghraib I blame Bush and the other top political actors...I don't think Yoo is responsible.

4/05/2008 2:00 PM  
Blogger Patrick said...

1:35, no offense intended, but your post exemplifies what makes me uncomfortable about the tone of JY discussions. I agree with you on the basic principles, but as far as I can tell, 2:00 is correct -- your understanding of the facts is just plain wrong.

There are legitimate points on which to disagree (see, 12:51), but attributing to JY all the terrible things that have happened in under the current administration is disingenuous and silly when you think about the relatively low office JY held in the administration at the time. An honest treatment of the issue makes things much more complex that just whether or not someone is "evil" or a sorry excuse for a human being."

Besides. He's cuddly/

4/05/2008 2:51 PM  
Blogger matt said...

Yoo has a forthcoming interview in Esquire, with a preview here that sheds some light on the controversy surrounding his writings.

And to respond directly to the "Yoo's work led to Abu Ghraib" arguments, he makes it pretty clear in the very first paragraph that what was written was meant to apply to the CIA and not to the military (or to Iraq in general). In pointing that out, I'm not saying I agree with the stance Yoo (and our entire executive branch) has taken on these issues. Rather, I want to show how easy it is for these things to get distorted by misinformation and exaggeration.

All in all, the preview is worth reading, and I'm looking forward to reading the article in its entirety.

4/05/2008 7:43 PM  
Blogger Marcus said...

It's documented that same torture techniques spread from Bagram in Afghanistan to Guantanamo Bay to Abu Ghraib in Iraq. They even brought in personnel from Guantanamo Bay to give the staff at Abu Ghraib tips on how to do it (although AG ended up being worse than GB). The same field manuals were used. The permission given from the White House, enabled by Yoo, was key in all of that.

It seems as though the significant majority of prisoners at all of those places were innocent. Many thousands of people were detained, and over a hundred died violently in U.S. custody. You can be sure for every one who died there were many others who were subjected to terrible treatment.

A lot of lawyer types I know use this sort of moral equivalence argument -- hey, most big law firms do bad stuff for corporations, it's a shame, but that's being a lawyer for you. First of all, I believe in capitalism so I don't think corporate law is bad or morally questionable. This torture shit is, to say the least.

You can add to that that in any situation the lawyer is morally obliged to help his client stay within the law, not give them excuses for violating it. That's ten times more important when you've got a position advising the most powerful level of the executive branch. The White House really can ignore the law with near impunity, so the lawyer as in-house legal conscience is that much more important.

4/05/2008 8:48 PM  

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