Don’t Ask, Don’t Tell


There is no instance in American history where we’ve been exposed as being so deeply involved in actually conducting torture on a routine and regular basis. Thomas Powers, author of two books on the CIA and an expert on national security, Salon, December 5, 2005

It’s time for Bush to end the hypocrisy of insisting his administration doesn’t con- done torture while fighting desperately to preserve its right to do so. Register-Guard , Editorial, Eugene, Oregon, December 5, 2005, one of a series of editorials titled “We do not torture”

Submerged in the quicksand of a 24-hour news cycle, along with the Bush administration’s unsuccessful attempts to hide its use of torture in “coerced interrogations” of alleged “enemy combatants,” there is a grimly chilling story you may not have seen.

On December 1, Doug Cassel, director of Notre Dame Law School’s Center for Civil and Human Rights, debated John Yoo, who, while at the Justice Department in 2002 and 2003, was the most influential adviser to George W. Bush on establishing his limitless powers as commander in chief in the war on terrorism. The December 25 New York Times noted that John Yoo’s memoranda to the highest reaches of government “became the underlying justification for . . . the order to try accused terrorists [charged with no crime and imprisoned indefinitely] before military tribunals; the secret overseas jails operated by the Central Intelligence Agency . . . and the use of severe interrogation techniques.”

In Yoo’s debate with Doug Cassel, the Notre Dame law professor asked: “If the president deems that he’s got to torture somebody, including by crushing the testicles of the person’s child, there is no law that can stop him?”

John Yoo: “No treaty.”

Doug Cassel: “Also no law by Congress—that is what you wrote in the August 2002 memo [while Yoo was a Justice Department attorney].”

John Yoo: “I think it depends on why the president thinks he needs to do that.” (Emphasis added.)

I focus on John Yoo because a December 26 Washington Post report quoted Marcus Cooney, who back in 1995 hired the young University of California law school expert on presidential powers to the staff of Utah senator Orrin Hatch’s Judiciary Committee. Said Cooney: “As far as conservative academics, I don’t think there’s anyone in the law whose contacts run deeper in the three branches, or higher.” Actually as high as they can go.

John Yoo is back on the faculty of the University of California law school at Berkeley, while writing and lecturing widely on Bush’s supreme authority to ignore Congress and the courts— including the president’s no longer secret unleashing of National Security Agency spying on millions of Americans’ telephone calls and e-mails. (Yoo was involved in that decision.)

Last year, I debated John Yoo during a panel discussion at Princeton University. He is an amiable, soft-spoken adversary, whose sole response to one of my questions about torture was: “I enjoy reading Nat Hentoff on jazz.”

John Yoo has a significant place in history as a vital figure in George W. Bush’s unprecedented expansion of the “unitary executive.” Or as Lincoln Caplan, editor of the continually stimulating magazine Legal Affairs (affiliated with the Yale University law school), puts it:

“The outlook of Richard Nixon was that he was above the law. Watergate disabused him of the notion. The position of George W. Bush is that he is a law unto himself.”

With both Senate and House committees about to investigate Bush’s unilateral authorization of the National Security Agency’s lawlessness—and a Senate committee purportedly about to look into the CIA’s secret prisons and the “extreme” interrogation techniques used at those “black sites”— John Yoo should be a featured witness, so that the public at large can meet so influential a source of what actually has become “an imperial presidency.”

Moreover, if Congress is, at last, going to be a truly separate branch of our government, there has to be a full-scale investigation of the extent, and the specifics, of torture in our prisons in Guantánamo, Iraq, Afghanistan, and elsewhere—as well as full and ultimate accountability for the barbarism, up the entire chain of command to Donald Rumsfeld at the Department of Defense and the occupant of the Oval Office.

In the December 5 Der Spiegel (“The Rule Against Torture is Absolute”), British human rights leader Shami Chakrabarti reminds Americans, among others in the world:

“The one absolute in the human rights framework is on torture. If you trim that even a little bit even in times of great peril, the whole edifice of democracy, human rights, and the rule of law will begin to crumble—not just morally and philosophically, but in real terms in your propaganda effort to persuade dictators and persuade terrorists that you cannot torture people.”

But this president—John Yoo told Doug Cassel—is entitled to justify why he thinks he needs to crush the testicles of the child of a suspected terrorist to get possible national security information.

On December 14, the British Financial Times, in a long, searching article, “U.S. Tactics on Terror Are Making Europe Examine Its Complicity,” emphasized: “Many Europeans argue that the Bush administration seems not to understand that the maltreatment of prisoners can provide a rallying cry for terrorist movements.” Terrorism expert Professor Paul Wilkinson of Scotland’s St. Andrews University added:

“If we want to win the war against Al Qaeda, we have to win the battles of ideas and show that we live by certain values which exclude torture.”

The facts in the Doomsday Book of American Torture are in—among many sources— the extensive records of Human Rights First, Human Rights Watch, and Amnesty International, as well as the American Civil Liberties Union’s revelations through the Freedom of Information Act, all available to Congress right now.