Using Justice Against Us

I originally posted this piece on November 7th, 2008 over at the Campaign For America's Future. Obama had won the election, but Bush was still president. Some of the piece is necessarily dated, but I'm re-posting it here for a few reasons. The tiniest one is that CAF has changed their template, and now all block-quoted text is also italicized, which obscures italics used in the original post. The other reasons are fairly straightforward. With the release of the OPR Report (the Office of Professional Responsibility for the Justice Department), there's more focus again on John Yoo and the lawyers who worked to give legal cover for torture and other war crimes. (I'll be posting something on the OPR at some point.)

Meanwhile, in a truly dismaying spectacle, there are pundits and hacks running around casually endorsing torture. True to form, they've been completely ignoring all the experts who have explained why torture doesn't "work" for intel, ignoring what the Bush administration actually did, and certainly ignoring that torture is absolutely illegal and a war crime.

Many in the same crowd has been attacking the very notion of justice itself, with the most prominent being Liz Cheney. Some want military commissions rather than civilian trials for alleged terrorists, even though civilian trials are standard and probably more effective. Some do not want any trials whatsoever for anyone accused of being a terrorist. Without irony, they attack the very idea of a fair justice system as a threat to civilization.

Barack Obama didn't create the current mess at Guantánamo and other sites. However, denying due process to any prisoner is indefensible. Charge the guilty, put them on trial, and let the innocent go free. That situation is bad enough. However, the Cheneys and their allies are fighting to make it even worse.

Meanwhile, I noticed that torture apologist Andrew McCarthy - in addition to living up to his last name - is making some of the same weak and misleading arguments that John Yoo did back in December 2007. While I want to delve into McCarthy further, conservatives Orin Kerr and Conor Friedersdorf have done a fine job challenging many of McCarthy's arguments. But without further ado...
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Using Justice Against Us
(11/7/08)

Among the many decisions facing Barack Obama is what to do about the military prison at the Guantánamo Bay Naval Base, and the many prisoners held there for years, in most cases without trials or charges. On a larger scale, Obama and his team will be judging the Bush administration's very notions of justice, and the world will be watching.

Everything's gotten further entangled in recent months, thanks in part to the Bush administration. On the one hand, a judge ruled that seventeen Chinese prisoners should be released from Guantánamo after being held there for seven years without evidence being produced against them. However, not long ago, the D.C. Circuit Court ruled that the CIA can hide torture allegations. The Pentagon has dropped charges against some Guantánamo prisoners so they can reset the clock to avoid deadlines for bringing them to trial, all with the full intent of reinstating charges later. CIA officers could be put on trial for alleged torture of a British resident. Just yesterday, "a Justice Department lawyer... urged a federal judge to continue the detention of six Algerians at the U.S. military prison in Guantanamo Bay, contending they would "take up arms" and attack Americans if released." Their lawyers claim the men, who have been held for seven years, are innocent. That's not to mention all the issues of torture and general treatment, as well as the problems of a trial system Scott Horton's called "The Great Guantánamo Puppet Theater."

There are many more sorry tales, of course. Bush spoke last year about shutting down Guantánamo, but unsurprisingly, he's left it to be someone else's problem. And as David H. Schanzer writes:

Bush's decision represents a victory for Vice President Dick Cheney, who, according to reports, believes that keeping the prison open under a new administration would 'validate' Bush's detention policies. But there is no redeeming the detention and prosecution system at Guantánamo -- a system that has produced only two convictions in seven years, has been rebuked by the Supreme Court three times and has caused four military prosecutors to step down in disgust.

I don't see how the Cheney-Bush policies could be "validated," but regardless, the Obama administration will have to confront those policies and their consequences. To that end, I wanted to take a closer look at an older argument by John Yoo that I think epitomizes the Bush approach toward justice.

Yoo, of course, features heavily in accounts of the Bush administration's efforts to legalize torture, and he remains a prominent advocate for their Guantánamo trial system. On December 3rd, 2007, shortly before the Supreme Court heard arguments about Guantánamo and habeas corpus in Boumediene v. Bush, NPR ran arguments from Georgetown professor David Cole and (current Berkeley professor) John Yoo. Cole basically argued that everyone deserves a trial. Yoo argued something very different, employing some interesting rhetoric in the process. You can hear both statements here (it runs 5:22), but I've transcribed Yoo's argument:

Tomorrow, lawyers in the Supreme Court will demand that terrorists held at Guantanamo Bay get their day in federal court. Sounds reasonable. But granting terrorists this right would make for unprecedented judicial micromanagement of war. The writ of habeas corpus has never benefited enemy POWs in war, any war. In World War II, the U.S. held millions of POWs. None were allowed to use our civilian courts against us, except for the rare case of citizens who joined the Axis.

In 1950, twenty-one Nazi war criminals captured in China brought a suit, exactly like this one. They had passed intelligence to the Japanese, even after Germany had surrendered. Justice Robert Jackson, who'd been the Nuremberg prosecutor, wrote for the court that granting their plea would hamper the war effort and bring aid and comfort to the enemy. His words are just as true today.

We can't expect our soldiers in the field to worry about warrants, lawyers and Miranda. Making the military act like a police force will dull the sharp edge of their spears. Until September 10th, 2001, we tried to rely solely on law enforcement to stop terrorism. I don't want the military to hold POWs arbitrarily. I don't want to hold civilians. The Pentagon doesn't want to be the world's jailer. Detainees are screened and reviewed multiple times. Only those who present the highest threat or have the most intelligence are sent to Guantanamo Bay. More procedures will mean less resources and less information for fighting al-Qaeda.

This is not a case of reining in an out-of-control president. The September 11th bombings put us at war. Congress authorized hostilities a week later. But in 2006, for the first the time in our nation's history, the Supreme Court tried to grant review of POW cases. Congress immediately overturned them in the Military Commissions Act. No court has ever challenged the president and Congress during war time. But our judges have already declared abortion, race and religion off-limits from the democratic process. Allowing them to interfere in core military decisions would represent yet another grasp of power by an imperial judiciary. This time, though, it may come at a steep cost.

Yoo's argument can be dissected and challenged many different ways, but I'd argue it's overflowing with implicit assertions that are challengeable, misleading or false. To go in rough order, he suggests that: all Guantánamo prisoners are terrorists, they are all guilty, civilian courts are the wrong method to deal with them, the Nuremberg trials support Yoo's argument, soldiers on a battlefield have to issue warrants and read Miranda rights to enemy combatants, a law enforcement approach to terrorism is ineffective, such an approach allowed the 9/11 attacks, John Yoo wants justice, all Guantánamo prisoners have been reviewed, they are all dangerous, using existing trial systems would endanger the "war on terror," using existing trial systems would somehow "interfere with core military decisions," giving due process to prisoners will somehow lead to "less resources and less information," Bush is not out of control, this is all about 9/11, Bush, Congress and the will of the people are being thwarted by the Supreme Court, which is overreaching as they always do, but this time in unprecedented and dangerous fashion, and it is the Supreme Court, not the Bush administration, that is acting in an "imperial" manner and must be curtailed – or else horrible things may happen. Whew! Shorter version: We know what we're doing, these are really bad guys who deserve to be punished, and don't question us.

It would take a long time to rebut every point of Yoo's thoroughly, and that's a key element to his technique – throw out as many claims as he can, make an emotional appeal, and try to sell some key falsehoods without anybody noticing. It generally takes longer to rebut a misleading claim than to make one. Feel free to challenge any of my characterizations above, or to delve into a different line of Yoo's, but when I first heard his argument, the line that leapt out at me and that has stuck with me almost a year later is: "None were allowed to use our civilian courts against us."

Yoo's got a pretty flat delivery if you listen to the audio, but to my ear it sounds like he's trying to sound wounded here – what a horrible, horrible thing this is – but regardless, it's a bizarre argument. How can a process of justice possibly be used "against us"? Doesn't justice entail punishing the guilty and exonerating that innocent? How can that possibly be bad? Yoo says these men are terrorists. Does Yoo mean that civilian courts can't be trusted to find them as such, to keep them imprisoned, or perhaps execute them? Does Yoo mean these men don't deserve trials, because that would be too good for them? Does he mean civilian courts or the normal military judicial system can't be trusted to punish these (supposedly) evil men sufficiently? I think this last one is precisely what he's implying, but even the most charitable reading doesn't hold up well for Yoo, because of a key, false premise implicit throughout his entire argument. He uses the word "terrorists" twice in two sentences, and later on throws in Nazis and 9/11 for good measure. Yoo is claiming all these men are guilty. They have done or tried to do us harm. He wants us to accept these premises without question. His other points are largely a smokescreen compared to selling this.

Now if only there was a way to determine the guilt or innocence of these men. Hmm.

Yoo is trying to sell a bypassing of existing systems of justice here, or really justice altogether. It's similar to what Cheney, Addington, Libby, Feith and others did with manipulating intelligence to sell the Iraq War. The Bush administration has often followed this pattern, asserting that it is right, it is infallible, and don't question it. Most arguments that Bush officials or their advocates have made in defense of Guantánamo (indefinite imprisonment, not bringing charges, the treatment of prisoners, the special trial system) have depended on Yoo's stealth thesis, that everyone they've imprisoned is guilty. I also think Yoo and his colleagues are appealing to fear, a desire for vengeance, and in some cases, bigotry. It's an element that deserves its own post, but their basic pitch is: These prisoners are guilty, they're foreign, they speak a different language, and they don't look like Peggy Noonan. Who can tell them apart? And why should you care about what happens to them? They're the Evil Other, and they're scary.

I'm not going to delve into every other point of Yoo's, but there are a few others I find interesting. His last rush, talking about activist judges and "abortion, race and religion" is rather odd, intentionally vague, and almost nonsensical. It sounds like a pander to right-wing attitudes, but that breaks with the "I'm a reasonable guy" persona he's trying to sell earlier. Still, if taken seriously, is Yoo suggesting fundamental rights should be decided by majority rule? Even if we say that Yoo is somehow defending the 'will of the people,' it contradicts his strong advocacy of unlimited power for the president. Most infamously, he asserted that no treaty or law could prevent the president from crushing the testicles of a child. Meanwhile, the "Miranda" talking point remains as popular as it is ludicrous among many conservatives, and at best is a slippery slope argument. On the war time powers front, in Boumediene v. Bush the Supreme Court somehow disagreed with the Yoo point of view, instead reaffirming that habeas corpus is a fundamental right that can only be suspended in times of rebellion or invasion. Glenn Greenwald has also delved into this issue on many occasions.

It's also noteworthy that Yoo cites Robert Jackson and invokes Nuremberg. (The case he cites, Johnson v. Eisentrager, is here. An overview is here, and refers to "German nationals" and not Yoo's more charged "Nazi war criminals." The Germans, in China, had told the Japanese about U.S. troop movements in China after Germany had surrendered, committing a crime significantly different from what was being prosecuted at Nuremberg.) In actuality, as many observers have noted, the Guantánamo trial system is the antithesis of the Nuremberg trials. Yoo also glosses over the fact that the Germans he mentions actually received a trial, something denied most Guantánamo prisoners for years. Scott Horton put it well when discussing the Hamdan trial at Guantánamo:

The Bush Administration could have handled this matter in the tradition that the nation’s greatest modern attorney general, Robert Jackson, set out at Nuremberg. Jackson personally took charge of the first prosecutions, delivering mesmerizing opening and closing statements and a dramatic cascade of evidence that targeted some of the most heinous criminals from the Second World War. Jackson had two important objectives before he reached the question of the guilt or innocence of the individual defendants: he needed to validate the fairness of the process, and he needed to demonstrate, clearly and convincingly in the eyes of the world, that heinous crimes had been committed which justified this extraordinary tribunal process. Jackson accomplished both goals. He also secured the conviction of key kingpins in the Nazi terror state. He did it all within the first year of the Allied occupation of Germany, through a process that helped transform the German people from enemies to friends. In the end, Jackson and his team demonstrated that the American tradition of justice was a potent tool to be wielded against the nation’s enemies.

By contrast, America has now endured seven years of an administration which fears the rule of law, which operates in the shadows as it contravenes criminal statutes and long-cherished traditions and retaliates mercilessly against civil servants who stand for law and principle. George Bush and his political advisors openly castigate law and justice as weaknesses or vulnerabilities–as public suspicions grow that they have darker reasons to be concerned about the law. Instead of following the historic route and using military commissions that follow the nation’s long-standing traditions, they have crafted embarrassing kangaroo courts. When the Supreme Court brought its gavel down on one of their shameful contraptions, they simply concocted another, equally shameful one, openly proclaiming an inferior brand of justice for those who were “not citizens,” exalting in the right to use torture-extracted evidence and to transact the proceedings in secret.

Or, as Lance Mannion put it, "Nuremberg? Nuremberg? Weren't the torturers the ones on trial in that one?"

Wouldn't have legitimate trials of actual terrorists, years ago, helped the Bush administration's crediblity? No one has ever said that actual, proven terrorists should not be kept in prison. Instead, critics of Guantánamo have pushed for due process, transparency, and humane treatment. They have pushed for justice, in an American tradition that includes Jackson at Nuremberg, but runs far deeper. That push for justice over the past seven years has come from both liberals and rule-of-law conservatives such as former Navy General Counsel Alberto Mora and members of the JAG corps.

Yoo's premises, so central to the Bush administration's approach to justice, don't hold up well to scrutiny. They can be tested in terms of rhetoric and logic, they can be examined in terms of case law - and they can be challenged by reality. A McClatchy series on Guantánamo has shown that the U.S. imprisoned or still holds dozens or even hundreds of men who are innocent. Furthermore:

The McClatchy investigation found that top Bush administration officials knew within months of opening the Guantanamo detention center that many of the prisoners there weren't "the worst of the worst." From the moment that Guantanamo opened in early 2002, former Secretary of the Army Thomas White said, it was obvious that at least a third of the population didn't belong there.

There are more well known cases, too, but claiming that all these men are guilty - and so should be denied due process – becomes indefensible when one knows of innocent people, and also knows that the Bush administration knows they are innocent. The Bush administration's support for indefinite imprisonment without charges and an "inferior brand of justice" for those who actually receive a trial seems to hinge more on the issue of torture - admitting coerced confessions as evidence, squelching torture allegations, and never admitting blame. It's a subject treated in far greater depth in books such as Torture Team, The Dark Side and Angler, documentaries such as Torturing Democracy and Taxi to the Dark Side, and on quite a few blogs (legal and otherwise). There's a question of whether John Yoo and some of his compatriots could be found guilty of war crimes. Seen in that light, it's not just that they continue to deny prisoners justice – they want to evade justice themselves.

The Guantánamo prison has long been some nightmare out of Orwell and Kafka. Men and women in power who fear justice are not likely to want to see it pursued. Perhaps when John Yoo said, "none were allowed to use our civilian courts against us," he didn't mean "us" as in "Americans," but rather "us" as in "me and my colleagues." The Obama administration will have plenty of messes to clean up, but this one can go far in restoring America's image in the world. It may in fact be one of the starkest contrasts an Obama administration can make, re-establishing the American tradition of humane treatment, due process and justice for all, in opposition to the perverse notion that some are infallible, unaccountable, and "more equal than others."