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Political Animal

Real Justice

By Brian Morton | Posted 4/9/2008

Picture the scene: It's earlymorning in Northern California. Two grim-faced men in suits knock on the door of a house, and a scholarly-looking man answers. In a matter of minutes, the men show the man golden badges of the U.S. Marshals Service, and he is loaded into a minivan in handcuffs. In less than a day, he is flown to the East Coast, transferred to a small government jet, and soon it is in the air, winging toward the Netherlands.

In a world where there is justice, this man's name is John Yoo, and he would be headed to the Hague, the seat of the International Criminal Court and the International Court of Justice. And ideally, Yoo would be defending himself.

Everybody knows a lawyer joke or three: "What do you call 100 lawyers chained to the bottom of the sea?" "A good start." "What is the definition of waste?" "A bus full of lawyers going off a cliff with an empty seat." "What's the difference between a dead skunk in the middle of the road and a dead lawyer in the middle of the road?" "There are skid marks in front of the skunk."

What isn't said is that, occasionally, along comes a lawyer who justifies all these types of jokes, and Yoo is that lawyer.

Yoo, a former member of the Office of Legal Counsel in the U.S. Justice Department, is the man who, back in 2003, wrote the memos for the Bush administration that sanctioned torture, opening the door and some even say creating the road map for the atrocities at Iraq's Abu Ghraib prison. Last week it came to light that not only was Yoo the creator of that memo, but that he wrote expansive memos that all but tossed away the Fourth Amendment as part of a claim of executive authority during wartime. This opinion was written in October 2001, and stated that the U.S. military was not limited by Fourth Amendment protections against search and seizure when combating terrorism inside the United States.

"Breathtaking" doesn't even begin to cover this. Yoo blithely tossed out the window the legal principle, enshrined in federal law, of posse comitatus, which says that the military cannot exercise law-enforcement functions that are the province of state officials. The president, in wartime, has the powers of a king, if you believe what Yoo wrote (and for a period of time, the U.S. government believed it).

Remember the old story about Benjamin Franklin leaving the Constitutional Convention in 1787? A woman asks him, "Well, Doctor, what have we got--a republic or a monarchy?" Recall Franklin's answer: "A republic, if you can keep it." Yoo is the fellow who, at the first sign of trouble, gave it away.

Another stunning example of a right he casually threw away was mentioned in a footnote to the Yoo memos released last week. Apparently, right to due process under the Fifth Amendment "[does] not address actions the Executive takes in conducting a military campaign against the Nation's enemies." After more than two centuries and dozens of wars and military actions, including combating the the Axis powers and waging the Cold War, it took 19 people flying planes into buildings for one man to unilaterally decide--and have adopted as official government policy--that the president can do anything he wants during wartime because the Constitution calls him "commander in chief." It takes a special kind of mind to believe in such a thing.

Now, normally when one imagines members of the Bush administration standing trial, it is because they end up getting arrested while traveling overseas, and a country with standing in the International Criminal Court places said offender under arrest, similar to the way Chilean dictator Augusto Pinochet was arrested in the United Kingdom on a Spanish warrant for the murder of Spanish citizens in Chile under his regime. With the current bloody nose that the United States has regarding human rights and the invasion of Iraq under false and manufactured pretenses--not to mention Abu Ghraib, Guantanamo Bay, secret prisons, and involuntary rendition of prisoners to nations that sponsor torture--the first, easiest and best way for America to regain some standing in the global community would be to offer up a sign of good faith.

What better sign of good faith than delivering the unabashed architect of these policies to the International Criminal Court?

Note that I am not calling right off the bat for his conviction--Yoo, unlike the hundreds of people subject to his abhorrent legal opinions, has the right to counsel, and the right to trial in a court of laws. Given Yoo's almost supercilious arguments in favor of opinions so contrary to the Constitution, I think that he is best equipped to present his own defense in front of that court. And considering the fool he'd have for a client, I also think it would be deliciously ironic.

Come the next administration, there's one simple way to begin to make amends for the bloody smear across the face of justice that has been effected under George W. Bush. In the language of reality TV, it's about time to vote someone off the island. One man needs to go. I vote for John Yoo.

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The Fix (8/4/2010)

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Funny Business (6/9/2010)

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