A Call for an Inquiry into the Ideological and Legal Origins of the Torture Doctrine
By David A. Sylvester
Oakland, California
Today we are here to challenge Professor Christopher Edley, Jr, dean of Boalt Hall at the UC-Berkeley School of Law, as a former civil rights attorney, as well as the rest of the law faculty at Boalt Hall to respond to a national emergency. That national emergency is that their profession - the academic legal profession and the universities that have trained them - has produced an ideology that claims to justify what used to be considered crimes of totalitarian governments, namely arbitrary detention, torture, trials before military commissions without any civil due process, not just as emergency measures required during a state of war but as legally based on the United States Constitution.
The fact that people, many of whom may have been mistakenly seized, are being tortured right now in Guantanamo, in secret prisons, in the hands barbaric governments doing our bidding would be reason enough to raise an alarm but even more important than that, it is the interpretation of the Constitution that is at stake. If these arguments are allowed to stand, unanswered and unchallenged, it is perfectly reasonable to believe the basis of law in this country as we have known it for two centuries is coming to an end. This is more serious than the Sept. 11 terrorist attack. This is a direct attack on the Constitutional basis of this nation. Any lawyer or law professor who does not answer this challenge and remains silent is, in fact, complicit in allowing this environment to flourish.
Of course, you all know the flashpoint for the debate is John Yoo, a constitutional law professor here at Boalt Hall and a former deputy assistant in the Department of Justice under President George W. Bush. Yoo has had the misfortune, entirely brought on by himself, of writing and participating on several of the key legal memos to Bush that justified the arbitrary detention of Al-Qaeda and Taliban suspects, their exemption from the Geneva Conventions on treatment of prisoners of war, their torture, the use of military commissions and denying the suspects any due process. These memos are all available on the Internet.
But my challenge does not focus primarily on Yoo’s arguments as a government lawyer. After all, his arguments may, in the end, carry no more weight than all the poppycock that Richard Nixon cited during his attempt to hide his subversion of the democratic process, cover up a break-in in the offices of his political opponents and generally evade his inevitable impeachment. My challenge focuses on Yoo’s academic work, most notably in his recent book, “The Powers of War and Peace.” In this book, he claims to step back and examine the theoretical and legal underpinnings of what he ended up arguing for Bush, that is, a vastly expanded notion of presidential power to make war as he sees fit, to make or break international treaties, even those already ratified, to interpret these treaties and generally act independently of customary international law.
It is a huge mistake to think Yoo is alone in his arguments. As the introduction to Powers makes clear, Yoo is only one in a constellation of professors, colleagues, students and active court justices who think as he does. He is not some lone wolf with wacky ideas but is influenced by and representative of a school of thinking that has come from the so-called “best law schools” of this country: Harvard, Yale, Berkeley. This is why, in my opinion, by their very presence here at Boalt, the faculty has an obligation to examine both the ideas advanced by this school of legal thinking, especially their colleague John Yoo, as well as the university system that produces and rewards this kind of reasoning. To draw a parallel, it would hard to argue the universities in Nazi Germany were not culpable for allowing the Nazi ideology to spread without challenge, even though then, Hitler was a dictator who could order professors fired, arrested and imprisoned, unlike now when totalitarian ideas are advanced and fostered in spite of absolutely no external coercion. In this, a failure to speak up is even more shameful.
Before I look at Yoo’s arguments, in the interest of full disclosure, let me say I am not a legal scholar. I am offering my thoughts here only as a reader who wants to get the debate started, and I will largely focus on the early part of Yoo’s book, his preface and introduction, which I think are the most revealing. Based on my reading – and I welcome refutation and discussion - Yoo’s thinking fails to satisfy the basic requirements of serious intellectual effort. He is wildly inaccurate in some places, deliberately misleading in others, uses false premises, misstates facts, reasons fallaciously from circumstance backward to method, and fails to take into account one core function of the law, to protect the vulnerable and those of minority opinions or classes. If Harvard, Yale, Boalt Hall and the University of Chicago were General Motors or Ford, I believe they would be ordered to issue a recall for producing a defective product.
Perhaps such a recall would be premature, and the demand for Yoo’s resignation, although understandable, might be premature. The first remedy under the First Amendment to false speech is contrary speech. And what is needed now is contrary speech, and lots of it. We need a full and thorough analysis of Yoo’s ideas and the others of the school of thinking he represents. I would ask Dean Edley and concerned law professors to form a blue-ribbon panel of constitutional, human rights experts and American Bar Association officials that examines the content, the method and the practical results of what is often called Constitutional originalism that leads to an unfettered president and conflictual relationship with the legislative branch. I would hope this panel, along with the bar, would produce a clear articulation of its position in these matters.
The Originalist School
It is important not to single out John Yoo as if he is some aberration – that would make his ideas less worth challenging – but to recognize he is representative of a school of constitutional interpretation. Over his career, he has developed an extensive network of law professors, federal judges and Supreme Court justices who have influenced or support his views of the U.S. Constitution, what it means and how to interpret it. Yoo received a bachelor’s in American history at Harvard, then his J.D. at Yale, and then joined the faculty here at Boalt in 1993. He clerked for Federal Appeals Court Judge Laurence Silberman, then clerked for Supreme Court Justice Clarence Thomas before he worked for the Senate Judiciary Committee and won his now infamous job at the Office of Legal Counsel in Bush’s Department of Justice. He is also a squash partner with Supreme Court Justice Antonin Scalia, whose book on Originalism is clearly a major influence on Yoo. The University of Chicago Press published his Powers book, presumably believing it showed excellence in scholarship.
Scalia and Thomas are well known, but others among his allies include:
- Judge Laurence Silberman, whom Yoo credits for teaching him “how the worlds of law and national security work in practice,” is known as a volatile hard-line right-wing ideologue. Silberman has been identified as one of the intermediaries for candidate Ronald Reagan in meetings with the Iranians before the 1980 election to make sure the American Embassy hostages weren’t released until after the election, preventing any so-called “October surprise.” Reagan then appointed him to the 3-person U.S. Court of Appeals for the District of Columbia Circuit, called the second most powerful court in the country. With fellow justice David Sentelle, a former aide to arch-right-wing Republican Senator Jesse Helms, he voided the convictions of both Oliver North and Admiral John Poindexter in the Iran-Contra scandal in 1990. Their intervention also played a key role in sabotaging the investigation by Iran-Contra special prosecutor Lawrence Walsh. Later, Silberman was a supporter of the Kenneth Starr persecution of Clinton and once accused Clinton as having “declared war on the United States” over the Monica Lewinsky scandal.
- Saikrishna B. Prakash, law professor at UC San Diego, who also clerked for Silberman from 1993 to 1994, and for Clarence Thomas from 1994 to 1995. Not surprisingly, he is a defender of “originalism” that plays such a big part in Yoo’s book. This is the idea that we need to go back to the “original understanding” of the constitution, not simply the text itself. In Yoo’s hands, originalism emphasizes history over judicial precedent, the ratifiers over the framers.
- Gary S. Lawson, law professor at Boston University School of Law, twice clerked for Justice Antonin Scalia, first at the Court of Appeals for the District of Columbia Circuit and is a founding member of the Federalist Society, a conservative legal think-thank that lauds itself on a devotion to liberty among conservatives and libertarians. Yes, Yoo is a member too. Who is Lawson? Yoo ends his book arguing for expanded presidential power with a digression on the New Deal. He notes that Roosevelt pushed through his New Deal by threatening to pack the Supreme Court. As is known, the Court caved in and approved FDR’s legislation. It is Lawson to whom Yoo cites as the authority for this statement: “Because of what many have seen as the Court’s blatantly political switch, the legitimacy of elements of the New Deal revolution remain open to question, either by those who wish to restrict the Commerce Clause or others who believe that elements of the administrative state are unconstitutional.” (pg 301) In other words, Lawson is one of those who believe the last 60 years of social legislation that has protected the unemployed, the poor and the vulnerable is the product of an illegal “administrative state” that has no basis in the constitution. Yoo does not explain why the president has expanded powers in one area but not in another.
Let’s now turn to Yoo’s core argument as I understand it. First, we will look at his assumptions, second his conclusions and third his methods of arriving at his conclusions. At each step, we will stop and critique what he is saying. It is cumbersome to do this, but seems the clearest way. Afterwards, we will reflect on the flaws of the university training he has received and its role in our current national crisis.
Assumptions: New World, New Law:
The key to understanding Yoo and his allies is to examine their assumptions. Fundamentally, Yoo et al start their analysis from one basic point: The world has changed. It is now a Bin Laden world.
According to Yoo, the world before the terrorist attacks was a world in which wars occurred “solely between nation-states,” which are “presumed to be both rational and susceptible to various levels of coercion, with force often being used only as a last resort. Warfare, if it were to come, would take predictable forms with clearly identified armed forces seeking to take control over territory and civilian populations.” (Powers, pg ix.) “In such an environment, a constitutional model that required the approval of multiple institutions before the United States could use force may have made some sense. The world after September 11, 2001, however, is very different. It is no longer clear that the United States must seek to reduce the amount of warfare, and it certainly is no longer clear that the constitutional system ought to be fixed so as to make it difficult to use force.” (Powers, pg ix)
First, Yoo is not reasoning correctly. He is essentially argues that the “constitutional model” depends on circumstances. If circumstances change, the constitution changes. But isn’t the point of the law that it is based on principle, not circumstances? I had the idea that the essence of legal thinking is to take a set of firm and unchanging principles and apply them to new circumstances. For instance, the principles of equality and liberty in a democratic society form the basis for the right to vote. In deciding the proper approach under new circumstances, say, the poll tax in the South during the 1950s as an impediment to vote, the proper approach is to reason from the principles to the application in the new circumstances. But this is not how Yoo seeks to operate. He wants to reverse the order. New circumstances require new interpretations of the law that end up producing new principles. This is incorrect and fallacious reasoning.
But he drives home the point even more: “These new threats to American national security, driven by changes in the international environment, should change the way we think about the relationship between the process and substance of the warmaking system. The scholarly consensus of the 1990s might have been more appropriate at the end of the Cold War, when conventional warfare between nation-states remained the chief focus of concern and few threats seemed to challenge American national security. The international system allowed the United States to choose a warmaking system that placed a premium on consensus, time for deliberation and the approval of multiple institutions. If, however, the nature and the level of threats are increasing, and military force unfortunately remains the most effective means for responding to those threats, then it makes little sense to commit our political system to a single method for making war. “ (Powers, pg ix and x)
The implications of Yoo’s approach are clearer. He is proposing to develop a system of “threat-based law,” not principle-based law. The starting point is the threat to national security, then the necessary change in the legal system and the rejection of the past legal system for its messy and cumbersome approach. He covers his tracks with the fuzzy euphemism of arguing for having more than “a single method” for making war. Later, he expands on this euphemism to call for an undefined “flexibility” in decision-making.
His statement above is inaccurate. Anyone with any familiarity with the military debacle in Vietnam or the failure to find bin Laden with military means or the failure to stabilize an invaded Afghanistan or the emerging debacle in Iraq can hardly say with a straight face that military force is the most effective means of responding to a threat. In fact, based on history alone, which Yoo loves only when it serves his purpose, one could more reasonably argue that military force remains the most ineffective means of responding to threats.
Secondly, we see once again his placing the basis for the United States’s warmaking system not on principle, not on the need to a national decision in a democratic fashion, on the circumstances of “the international system.” By Yoo’s reasoning, we can attribute the success of our democracy to the good fortune of favorable international circumstances for the past 200 years, in spite of minor annoyances such as Nazi Germany, the attack on Pearl Harbor, and the balance of terror with the Soviet Union. If his first assertion about the effectiveness of military force reads as if Yoo never ventured outside the library or read a newspaper since birth, then the second assertion makes it seem as if the only history he really knows is the past couple of decades. He apparently has no grounding in the classics that the Framers studied, such as the fate of Athens, or Rome, or the political philosophy of Aristotle, Plato or Cicero, who argued for a mixed government and influenced the Framers profoundly. Yoo seems astonishingly a-historical, as if the Sept. 11 attacks were the biggest innovation in warfare since Alexander the Great conquered the known world. I would say this is the argument of a young man, but considering that age has nothing to do with it, I would say this is the argument of an uneducated man.
This a-historicism is a curious attribute of his entire analysis, because he takes it for granted that the Sept. 11 attacks created a new world without explaining why or how. He simply asserts that they have made the world more dangerous, may make war the “default state” of international society (clearly written by someone who does not expect to be dealing with roadblocks, checkpoints and arbitrary detention in Berkeley) and that the United States may need to “reduce” conflict, instead of – what? - presumably increasing conflict? By avoiding any real analysis of what Sept. 11 was really about, Yoo is simply repeating the assertions of his government handlers. He does not discuss in his book as he does in one of his memos, for instance, the possibility that Sept. 11 is an “anti-colonialist reaction” to the U.S. domination and economic control of the Middle East, which is precisely what bin Laden has mentioned in every communiqué. (Bin Laden has generally focused on justice for the Palestinians and the U.S. military out of Saudi Arabia and Afghanistan.) As an anti-colonialist reaction, the Sept. 11 attacks fall into a very predictable pattern with the Algerian rebellion against France, the IRA rebellion against Britain in Northern Ireland, or the Jewish partisans' guerrilla war for a homeland for the Jews in Palestine.
In summary, it is clear that Yoo wants to replace the rule of law and principle with the rule of circumstance. It is implicit in his statement: “This book proposes that we understand our Constitution’s allocation of the foreign affairs powers to permit a flexible decision-making system that can respond to such sweeping changes in the international system and in the American national security posture.”
In short, this is the argument for a National Security State backed by National Security Law.
Proposal: The “flexible” decision-making system:
In essence, Yoo both argues against what he calls the “scholarly consensus”, mainly John Hart Ely’s War and Responsibility (1993), Thomas Franck’s Political Questions/Judicial Answers (1992), Michael Glennon’s Constitutional Diplomacy (1990) and Harold Koh’s National Security Constitution (1990). This alleged consensus holds that Congress and the President share power over foreign affairs as equals, that Congress needs to approve of presidential action and that the recent increase in undeclared wars based primarily on presidential initiative are unconstitutional. They also argue for what Yoo calls “an intrusive judicial role in overseeing this legalistic arrangement to keep the presidency within its restricted bounds.” (Powers, viii)
In contrast, the Constitution really calls for a “flexible” system, according to Yoo. By this he means that the President as Commander-in-Chief can do whatever he wants, Congress can only block funding or pass interfering laws to stop unwanted presidential actions and the judiciary can just stay out of the whole battle. The Congress does not have equal footing with the president over matters of war, even though Article 1, Section 8, clearly says the Legislative has the power “to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; to raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; to provide and maintain a navy; to make rules for the government and regulation of the land and naval forces,” etc.
In his mind, the Constitution allows the Congress and the President to have powers that “can be used to pursue independent and conflicting foreign policies” which creates “more flexibility in managing foreign relations than is commonly assumed.” (Powers, pg 8) As he says in his preface, “the Constitution depends less on fixed legal processes for decisionmaking and more on the political interaction of the executive and legislative branches. It allocated different powers to the president, Senate and the Congress that allow them to shape different processes depending on the contemporary demands of the international system and their relative political position. The Constitution does not require a single, correct method for making war or peace, for making international agreements or breaking them, or for interpreting and enforcing international law. Rather it allows the branches to cooperate or compete in foreign affairs field by relying on their unique constitutional powers.” (Powers, Pg viii) In other words, the Constitution gives powers, not procedures, to each “political branch,” and lets them duke it out. Disputes between the two branches are deliberately not settled by an institutional system designed to arrive at a single decision but instead by what he blandly refers to here as “political interaction.” After all, he claims, the “historical evidence tends to support a more dynamic and open struggle between the executive and legislative powers over foreign affairs.” (Powers, pg 17.)
Basically, Yoo is proposing that the Constitution does not establish any decision-making system at all but sets up a power struggle between the executive and the legislative to allow politics to play out. And of course, no fair for the judicial system to intervene. Why has the president gained such power to make war, such as in Korea, or Vietnam or several interventions under Reagan? Simple: Congress failed to cut off funding for soldiers who have been already sent to battle, because it has lacked “political will.” (p. 143) In short, Yoo would institutionalize deadlock at best and chaos at worst. In the background, there is the smell of some vague idea of free-market idea of a competitive world in which the strongest win out. Such an approach strips the courts and law out of the system and exalts politics and power.
In the midst of this stands the president: “If we assume, as many scholars do, that the international system is governed by anarchy in which nations seek to maximize their security and power (realism), or even that nations can cooperate in various ways to escape a prisoner’s dilemma (institutionalism), then the demands of the international system promote vesting the management of foreign affairs in a unitary, rational actor. The rational actor can identify threats, develop responses, evaluate costs and benefits and seek to achieve national strategic goals through value-maximizing policies and actions.” (Powers, pg. 20) And guess who the “unitary rational actor” gets to be? That’s right, the president.
Yoo continues: “While bureaucratic or political imperatives may distort policy, or domestic interest groups may at times overcome the national interest, a unitary rational actor remains an ideal to guide foreign policy. It seems obvious that the president best meets the requirements for taking rational action on behalf of the nation in the modern world.” He then quotes Constitutional scholar Edward Corwin who says that the president has the advantage because “the unity of the office, its capacity for secrecy and dispatch, and its superior sources of information, to which should be added the fact that it is always on hand and ready for action, whereas the houses of Congress are in adjournment much of the time. “ (Powers, pg. 20)
On a theoretical level, this is the argument for a dictator, a single ”unitary rational actor” who knows best the “national interest” and who can avoid the “political imperatives,” - or wait a minute, wasn’t Yoo was praising politics just a moment ago when it suited his purposes to set the legislative and executive at odds, but now they “distort” policy? On a more practical level, no one who has the faintest memory of the president-driven Vietnam War, the misinformation of body counts, the recent misinformation on WMD in Iraq could possibly think the president somehow has “superior sources of information.” No one who has been living in the real world could possibly refer to LBJ, Richard Nixon (Remember his “crazy man” theory of scaring the enemy into negotiations?) or George W. Bush as “rational actors.”
I would say we detect the odiferous tracks of the familiar economist-skunk in all this talk of nations seeking to maximize some goal, and rational actors seeking value-maximizing policies, but there is one problem. In economics, the system works best with competition, not monopoly, so a single unitary actor would necessarily be inefficient and be unable to find the value-maximizing solution. Only competition does that, and more than competition between two actors, such as the legislative and executive, but between many actors. Yoo would be more consistent with the implications of his jargon if he argued for anarchism, not for a dictatorial president. In fact, this is muddle-headed thinking on a breathtaking scale, misusing undefined, unexplained, un-footnoted terms (realism? institutionalism?) to rationalize exactly the opposite of the logical conclusion.
One final note: In his many mentions of the two sources of Congressional power – power of the purse and power of contrary legislation - he interestingly fails several times to mention the third, one which he later cites in reference to the British system: impeachment. (Powers, pg. 86) In fact, this is a third way in which the Congress can reign in a runaway president.
Methods: Originalism and Historicism, not Judicial Precedents
Does any of this surprise you? You aren’t alone. “These results might initially appear inconsistent with the plain meaning of the constitution text,” Yoo admits, after he concludes a discussion about treaty powers. (Powers, pg 17) To produce such an unusual interpretation, naturally Yoo needs something more than just the text of the Constitution. First, Yoo needs to burn down the forest of past constitutional interpretation before finding the weeds he wants to point out as the real life. Like any good academic, Yoo needs to show that what might seem to be long-settled questions are actually open, namely that the Constitution has never settled the question over who can conduct war, or engage in international treaties or interpret them. In fact, the Constitution is “incomplete.” Pg. 17. “The deepest questions of American foreign relations law remain open because the Constitution wants it that way,” he writes.
Once the question is open, the way is clear to “new ideas.”
These new ideas stem from a different method, and this method is what has become a cottage industry among his academic allies and his squash partner on the Supreme Court. It is called originalism. Essentially what matters is not the “original intent” of the Framers, those who actually wrote the Constitution, but the “original meaning” as understood by the ratifiers, those who gave the Constitution its legitimacy. In this, the words of the text are only one source; the debates, the history, the context of the adoption are also sources. In addition, he includes “practice,” especially the practice of the post-World War II era when the President took on expanded war-making powers. “My effort is to reconstruct the understandings of the delegates who participated in the ratification process of the state conventions and the leaders who debated the proposed Constitution in the press, rather than the intentions of those who drafted the Constitution but were not politically authorized to adopt it.” (Powers pg. 28)
Among the other sources, he looks at history: British constitutional theory and practice, the experiences of the states, the state ratifying conventions. One thing he will not look at is judicial precedent, partly because, he claims, it is sparse. This may well be true, but it would seem strange for a lawyer to favor history over court precedent. I am not qualified to say whether he has missed important judicial precedent or the meaning of his weighting history, but I do know from history that you can find anything you want in history. Historical debates are Rorschach blots revealing more about the viewer than what is viewed. They do not have the clear resolution of past court cases. As a client, I might serious doubts about my lawyer if he told me, “Let’s just not worry too much about past court precedent. Tell your story to the judge. That’s what he wants to hear.”
However, it is exceedingly odd, if not downright dishonest, for a student of history to misquote a well-known phrase. “America has also avoided mulilateralism by staying out of new entangling alliances” Yoo writes, on page 1, such as refusing to join the convention banning the use of anti-personnel land minds or a new protocol over biological weapons and small arms. As anyone with elementary knowledge of American history knows, “entangling alliances,” is usually attributed to George Washington’s 1796 Farewell Address to the nation. Washington never actually used the words but he was clearly encouraging the new nation to avoid becoming snared in the great power politics and competition of the European nations. “Europe has a set of primary interests which to us have none or a very remote relation,” Washington said. “Hence she must be engaged in frequent controversies, the causes of which are essentially foreign to our concerns. Hence, therefore, it must be unwise in us to implicate ourselves by artificial ties in the ordinary vicissitudes of her politics or the ordinary combinations and collisions of her friendships or enmities “ Washington argued for neutrality, then said: “Why quit our own to stand upon foreign ground? Why, by interweaving our destiny with that of any part of Europe, entangle our peace and prosperity in the toils of European ambition, rivalship, interest, humor, or caprice?” Obviously, Washington had in mind the Treaty with France, the upheaval of the French Revolution, the threats to established Crowns in Europe. Humane proposals such as banning landmines or controlling bioweapons have nothing to do with the “entangling alliances” that Washington was referring to. This is, I believe, academic malpractice.
Conclusion: A failure in principles and values
In all his argumentation, there is one notable lacuna: Yoo entirely fails to mention anything to do with principles. He never mentions international human rights, or even the values of the Founders who spoke of establishing Justice, securing the blessings of liberty, and unalienable rights. Not a word about the original intention of the Founders, to establish a government to secure the rights to “Life, Liberty and the pursuit of Happiness.” In fact, that is the most remarkable thing about this book. None of his arguments are focused on the traditional goals of law, protecting liberty, expanding democracy, ensuring the rights of the vulnerable and endangered, restraining the abuse of the powerful. Instead, his argument is essentially to expand the power of the powerful President, to curtail restraints preventing abuse, to increase the role of power politics and to erode the constraints of the judiciary.
It is not that Yoo and his school lack principles. They have one overriding concern: Security. In Yoo’s book, as Attorney General Alberto Gonzales does in his Jan. 25, 2002 memo to Bush supporting the stripping of POW rights to the Taliban and Al-Qaeda detainees, the central point is the fear of attack and need for security. Because there is the threat, security comes first. Because security comes first, military force is needed. Because military force is needed, the powers of the president must be shaped to maximize military effectiveness. Hence, this requires a strong, unilateral president. There is no underlying legal principle at work beyond the need for security. In essence, this is the substitution of American values of the role of government is to protect liberty, democracy and equality for the value of national security. It is the erection of the National Security State. It posits war, not peace, as the “default state” and justifies turning the U.S. democracy into a military autocracy. The values of the military – efficiency, unilateral decision-making – are substituted for the traditional values of democracy – broad participation, national unity in decision, a slow thoughtful approach to war.
This explains why he is attracted to reasoning from circumstance backwards and why he resorts to unusual methods. He is not thinking like a lawyer guided by principles but like an apologist, finding the principles and methods that will produce the right result. There is no principle by which he decides that text, structure and history is the right way to study the Constitution. There is no basis on which to choose history over precedent. It is simply a way to summon up competing sources that will obscure the clear language of the Constitution, since what is written is only the “original intent” of the Framers but not the “original meaning” of the ratifiers.
In essence, Yoo has reversed the traditional emphasis of law: He is focused on increasing the power of the powerful, the President, and decreasing the power of the weak, whether they are vulnerable detainees or Congress. He is arguing from the point of view that the status quo is right and any challenge to it is wrong. It does not apply a rule of law to both sides of the fence. As he makes clear in his OLC memos, Yoo argues that the President with his powers can ignore “the laws of war” against the Taliban and Al-Qaeda but then set up military commission to try them under the same laws of war that he has just torn up. This is, again, breathtaking until the core principle is inferred: The law is what the powerful say it is. The President is powerful and he can determine that the laws of war do not apply to his treatment of others, since they are militias and not state-actors. But the same laws do apply to their treatment of our armed force because ours wear uniforms and are sanctioned by a nation-state.
The Pitfalls of University Training
In my view, Yoo’s thinking fails to meet reasonable academic standards on several counts, all mentioned above: His claims are inaccurate (on military effectiveness, on Washington’s alliances), his terms undefined or ill-defined (flexible decision-making, legalistic process), his reasoning fallacious (backwards from circumstance to interpretation), his grasp of legal principles weak (failure to ground his discussion in principles underlying law). I welcome debate and discussion of this.
If my view has merit, we need to ask next: What kind of intellectual environment has produced this kind of thinking? What is the larger context? In my view, the university system itself bears responsibility for producing and rewarding the kind of thinking that Yoo and others have justified the unilateral power of the president to engage in torture.
First of all, the university trains its students for an intramural combat among academics. Yoo’s book reads like a Ph.D. thesis in which the point is to respond to previous “scholars.” In his introduction his reference point is clearly not past works of philosophy, the founding thinkers of constitutional democracy but “scholars of the 1990s. In his introduction, he mentions no less than 18 times what he refers to as “the scholarly consensus.” In fact, much of his basic argument is a response to three “foundational works” written in the 1990s - those by Ely, Glennon and Koh - that argued for restraining presidential power and decrying the growth of undeclared presidential wars as unconstitutional. These are the “foundational works” on constitutional interpretation? In other words, before the 1990sm, we were lost in the dark because we lacked “foundational works?”
Secondly, it is clear the university is not engaged in education but in technocratic education. Only this would explain the utter lack of any reference to the grounding works of Western civilization in political theory. Only this is why Yoo is essentially focused on responding to the critics of his age group, and cites mainly law review articles instead of basic texts. Only this explains why he has no grasp of the purpose of law, as a safeguard against exploitation and abuse, or why he falls prey to logical fallacies of reasoning from circumstances instead of principle.
On an intellectual level, we have to question what the university system has done to produce a mind like this. This is technocratic training, not education. There is no grounding in philosophy, values, ancient history. The models of Rome and Greece and the political thought of Aristotle, Plato and Cicero have no place in Yoo’s book, or in his university education. Instead, he reasons like a graduate student in a debate with senior faculty who published their books in the last ten years, the so-called “scholarly consensus” of the 1990s.
Conclusion
This is not an academic debate. There are real people who are suffering excruciating torments without any legal process as a result of the legal opinions and arguments of Yoo and his allies. They are languishing at Guantanamo, in Abu Ghurayb, in Afghani prisons and possibly other secret prisons throughout the world. Some may be entirely innocent, victims of bad circumstances. Others may be guilty of petty crimes. Still others may be major criminals. The entire purpose of a legal system is to sort through the allegations and fabrications and punish the guilty and protect the innocent. Yet the Constitution is now being used to defend exactly these abuses. My charge against Boalt and its professors is no different than if I were accusing doctors of killing, instead of healing, of accusing priests of leading people away from God instead of toward God, of accusing journalists of lying instead exposing the truth. I think my analysis – and the victims - deserve a response.
Thank you,
David Sylvester
davidsylvester@earthlink.net.
(David A. Sylvester is an Oakland resident, a former Bay Area journalist and teacher. He is scheduled to report to FCI Lompoc, at the satellite prison camp, to serve a 90-day sentence for a civil disobedience action against the former School of America’s at Fort Benning, Georgia, as a protest against U.S. involvement in torture and military repression in Central and Latin America. His blog is: http://bydavidsylvester.blogspot.com.)
