- As Yoo saw it, Congress doesn't have the power to "tie the President's hands in regard to torture as an interrogation technique." He continued, "It's the core of the Commander-in-Chief function. They can't prevent the President from ordering torture."
This may be old news, to folks who have been paying attention -- from memos that have emerged from Dubya's White House which make the same claim in more obscure language. But it's a bit of a change from the old American notion of "a government of laws, not of men", in which officials swear oaths of loyalty to the Constitution, and pointedly not to the President.
And in fact, if you google that phrase right now, you'll find quite a few denunciations of Dubya's crew for failing to respect that principle -- and attacks on the principle itself from, among others, an advocate for Christian theocracy in the U.S. and a racist fanatic.
Well, you can guess how they criticize the principle. But what about John Yoo, professor of law at Berkeley?
- "Why is it so hard for people to understand that there is a category of behavior not covered by the legal system?", he said. "What were pirates? They weren't fighting on behalf of any nation. What were slave traders? Historically, there were people so bad that they were not given protection of the laws. There were no specific provisions for trial, or imprisonment. If you were an illegal combatant, you didn't deserve the protection of the laws of war."
Slave traders did get the protection of the laws in pre-Civil War America. Even in states where slavery was illegal, via the Fugitive Slave Act. And even in colonial days, pirates were given formal trials in maritime courts. The attempts of George III to replace those courts with, in effect, military tribunals are among the grievances listed in the Declaration of Independence. As is his practice of "transporting us beyond the seas to be tried for pretended offences".
Which brings me to the source of the quotes -- an article by Jane Mayer in this week's New Yorker, which begins with the case of Maher Arar -- detained in an American airport and sent to Syria to be tortured. It ends with the case of Hadj Boudella -- quite literally kidnapped out of the Balkans and sent to Guantanamo, where he is likely being tortured and may never emerge. Both men are being presumed guilty of terrorism based on the thinnest wisps of a possible association. Neither got the ghost of due process. This is what America has become. "24" isn't dark fantasy; it's a secret police procedural.
(Don't expect American soil to be free of these practices; Arar was Shanghaied from New York. Nor American citizenship -- this is what the Jose Padilla case is about).
But respectable legal scholars like Yoo -- never mind the quality of their arguments -- are permitted to say things like this and stay respectable. So long as he's a lawyer making the best case he can for his client -- in this case Dubya, who wishes to be allowed to torture on a whim -- constructing the best argument he can is what lawyers are supposed to do. (And can anyone doubt that he'd put forward better arguments than that if he possibly could?)
These, at any rate, seem to be the standards of our legal system, at least to one guy looking in from the outside. But I can't help feeling there's something fundamentally rotten about a legal system in which a practicing attorney feels comfortable saying of an ongoing case, in a perfectly matter-of-fact way, that
- U.S. lawyers know that what judges do is to pick winners and losers, then help the winners win and help the losers lose. The goal is finality in a dispute. That means helping the winner create a record that has the best chance of being sustained on appeal.
Thus, Bush v. Gore. But when did the rot set in?
The "winners and losers" quote, by the way, is from a lawyer's commentary on the SCO v. IBM trial, in which SCO is alleging, to oversimplify greatly, copying of Unix code which they own. For what it's worth, the loser the judge seems to have picked is SCO -- and since they have produced no evidence for some of their charges after literally years, I have no quarrel with that.
But I've seen the same kind of "active case management" (quoth Groklaw), in which the judge "drop[s] the default mode of just letting the lawyers develop the record while the judge plays referee", at work in another case relevant to the free software community -- the DVD copying case, in which one argument for the defendants was that they were just trying to make a DVD player for Linux. The player exists, and they offered to demo it. But the judge (who had earlier helped form the DVD consortium while in private practice) declined to see the demo, leaving it off the record, and invisible to courts of appeal. If you think the role of the judge is to pick the right winner, and shape the record to favor it, you lose the right to quibble with his choice.