Torture isn't torture when the president orders it.
In a Fox News op-ed
published Friday, John Yoo tries to paint Barack Obama as an extremist who has more radically violated the Constitution than any president since Richard Nixon. Thus does the remarkable upsidedownism of the Republican Party take another step into fantasy.
Yoo, who teaches at Berkeley Law, argues that Obama violated the separation of powers with his "deferred action" on deporting immigrants who were brought to the United States by their undocumented parents. The temporary measure—it's only good for two years—potentially affects some 800,000 young people threatened with being sent back to their countries of origin even if they were raised since they were toddlers in the United States and don't speak the language or understand the culture of their birth-nations.
Yoo pretends sympathy for these young immigrants but says the president displayed a "radical vision of executive power" by defying the law on immigration, an arena that is constitutionally a matter for Congress to deal with.
Yoo, as you may recall, wrote the infamous Aug. 1, 2002, interrogation opinion for the Office of Legal Counsel in the Bush administration that gave the green-light to torture of "enemy combatants." This allowed that sleep-deprivation, painful stress positions and water-boarding are perfectly okay in war time. Completely contrary to the U.N. Convention on Torture. The treaty states that :
[T]he term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
With a straight face, Yoo went on to write that the president was not subject to the provisions of the War Crimes Act of 1996, which includes a "grave breach of the Geneva Conventions," as one the violations for which prosecutions can be initiated. That built on a memorandum from Alberto Gonzales when he was Bush counsel that the "prisoner of war" status of the Geneva Conventions did not apply to "enemy combatants." The Supreme Court subsequently shot down that point of view in
Hamdan v. Rumsfeld in 2006.
In a sane world, someone who wrote legal arguments justifying torture and excusing officials from the president on down who ordered or engaged in torture would be happy not to do prison time and return to his professorial sinecure, occasionally speak at the Federalist Society and write the infrequent academic journal article on some obscure topic. But brazenness knows no bounds for those who claim water-boarding doesn't qualify as torture. So Yoo finds it reasonable to label Obama's action as a "radical" vision of presidential powers and the implementation of torture as perfectly within the bounds of maintaining national security.
You know what's really radical, what's really extremist? It's this so-called scholar making legal arguments for fascist behavior.
Yoo told Department of Justice investigators in 2010 that it was within the president's powers to order massacres. In a 2005 debate, Yoo was asked whether there was a law against the president's ordering someone to crush the testicles of a child to make the parent talk. Yoo replied: "I think it depends on why the president thinks he needs to do that.”
Here's Yoo in 2008 testimony before the House Judiciary Committee. Chairman John Conyers is questioning:
CONYERS: Could the President order a suspect buried alive?
YOO: Uh, Mr. Chairman, I don’t think I’ve ever given advice that the President could order someone buried alive…
CONYERS: I didn’t ask you if you ever gave him advice. I asked you thought the President could order a suspect buried alive.
YOO: Well, Chairman, my view right now is that I don’t think a President — no American President would ever have to order that or feel it necessary to order that.
CONYERS: I think we understand the games that are being played.
Radical. Extremist. Barbaric. But with a nice suit and two Ivy League degrees.
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Mets102 has a discussion on the subject here.