Professor John Yoo Refuses to Testify on Torture Memos

Professor John Yoo has formally rejected a request from the House Judiciary Committee for his testimony, prompting a likely subpoena from the committee.

In a letter to Chairman John Conyers (D-MI), Yoo’s lawyer john Millian said that he is merely following the directions of the White House on the question:

We have been expressly advised by the Office of Legal Counsel of the United States Department of Justice that Professor Yoo is not authorized to discuss before your Committee any specific deliberative communications, including the substance of comments on opinions or policy questions, or the confidential predecisional advice, recommendations or other positions taken by individuals or entities of the Executive Branch

The problem with a confrontation over such testimony is the refusal of the democrats in both houses to pursue the torture program as an investigation in criminal acts by the Administration. The President’s authority and privilege does not extend to the commission of crimes — despite the suggestions of the prior torture memos. As such, it is hard to maintain a refusal to share any information in an oversight investigation into such crimes. Congress has tried to play it both ways: investigating torture, but not calling it a crime. Click here.

Once again, the problem

For the full story, click here.

35 thoughts on “Professor John Yoo Refuses to Testify on Torture Memos”

  1. Wooo……

    (lips pursed) – just waiting for you, JT.

    (The Politico) John Yoo, a former top Justice Dept. official who authored hugely controversial memos on interrogation techniques that can be used on detainees, and former Attorney General John Ashcroft, will testify before House Judiciary Committee, according to the Associated Press.

    “A former Justice Department lawyer who wrote a now-repudiated memo allowing harsh interrogations of military prisoners has agreed to testify to Congress about those practices, say House Judiciary Committee officials who spoke on condition of anonymity because the panel has not yet made the announcement,” the AP reported.

    “Former Attorney General John Ashcroft, former Under Secretary of Defense Douglas Feith, and former Assistant Attorney General Dan Levin have also agreed to give testimony at a future hearing. Former CIA Director George Tenet is still in negotiations with the committee.”

    David Addington, chief of staff to Vice President Dick Cheney who was heavily involved in preparing the DOJ memos, is still considering whether to appear before the committee. A Judiciary subcommittee is meeting this morning to vote on authorizing subpoenas for Addington and others Bush administration officials.

    UPDATE: The Judiciary Committee’s subcommittee on the Constitution, Civil Rights and Civil Liberties, chaired by Rep. Jerrold Nadler (D-N.Y.), has authorized a subpoena for Addington. The authorization resolution grants Judiciary Committee Chairman John Conyers (D-Mich.) to issue a subpoena for Addington’s testimony at his discretion. Conyers has not said when and if he will do so.

    “Torture is un-American and yet it has been used by this government against those in our custody and control,” said Rep. Nadler. “And now we know that these so-called ‘enhanced’ interrogation techniques were approved at the highest levels of government. Torture and cruel, inhuman, or degrading treatment, besides being contrary to American values and traditions, have proven to be an ineffective means to obtaining actionable intelligence.”

    Copyright 2008 POLITICO

  2. Deeply Worried,
    You may be right about the pardon possibility. All of our discussions may be moot if he pardons his entire administration. Is there any precedent for pardoning the entire top tier of your Administration when a President leaves office? Who pardons George W.? Maybe we can get him after he leaves in January. Maybe someone should ask Obama and Clinton about the foreign extradition issue now.

  3. Hi Rafflaw,

    I thought so too until recently, and then I realized that Yoo’s involvement can’t be prosecuted under any U.S. statute barring someone coming forward and testifying that Yoo was privy to the fact that people were being tortured ante his memo(s), and then maybe you have misprision of felony.

    No, Yoo is probably liable under some theory of culpability in the Alien Torts Claim process and that’s where we may see him face a test.

    As far as war crimes, Yoo is perhaps guilty in the same sense the Alstoetter like defendents were. But you won’t see a prosecution here under international law. It would have to be overseas I’m afraid and even a Democrat president would be under fearful local pressure to resist a foreign extradition. A Republican president wouldn’t even consider it.

    Then there’s the matter of the Executive’s pardon power. I may be wrong, but I believe Mr. Bush may try to shield people like Yoo before he leaves office.

  4. Deeply Worried,
    Welcome back. I enjoyed reading your posting about the similarities between Nazi Germany and the Bush Administration, but I have to take exception to one comment. You suggested that Yoo was a minor player and the prosecutions should only be used for the bigger fish. I think the abuses are so serious that any party involved in the process, from top to bottom, should be prosecuted. Unless you use the minor player(s) to testify against the bigger fish, they should all have to answer for their abuses.

  5. What a nice set of greetings! Yes, I didn’t want to stay away so long, but sometimes it happens! I don’t know how those smiley faces got into my post above..I must have hit some wrong key in closing the parends.

    It is eerie, friends, reading the accounts of the Reich Ministry of Justice in the 1935-1945 period and how the steps they took to provide legal cover for the goings-on of the time were 70 years later so uncannily duplicated in the OLC and in the Congress (Patriot Act, MCA, etc) They basically established a separate court system and judiciary for “alien peoples” and created retroactive laws covering earlier misconduct, they also used “exigent circumstance” reasonings to thread their way around old laws and reclassified whole populations to put them outside the old protections. Special extra-territorial detainment facilities, restricted access to counsel, torture/interrogations, subservient judiciary. If you pick anything we have done, they did it too. Overall we have been infinitely more humane and precise in our dealings with enemy combatants, but the “War Against Terror” is young yet and the Germans abused their legal system increasingly as the years went on, and so likely would this administration were it given a Rooseveltian longevity in office. Such abuses tend to accumulate once you crack the wall of legality.

    In the German’s case, the abuses got a number of the legal aid and abettors hauled up before the Nuremberg Commission.
    I think Yoo is part of our mirror evolution, but such a minor player that I would reserve prosecutions for the next layer of management and up.

  6. Hello D.W.,

    I was getting concerned as well. Glad to hear from you again.


  7. Deeply:

    I missed your pleasant and elegant text. Don’t stay away so long.

  8. Hey DW!

    I just took a walk down memory lane – reading old posts.

    Nothing surprises me, anymore – and usually when I say that something still does.

    A lot of this sounds like posturing.

    The OLC has directed him not to appear, of course, but his interests and theirs might not be coextensive, as it were.

  9. Hello All and especially Patty C!

    I have not been on the internet much this last week. In fact I have been pretty unplugged from the news.

    Yoo’s refusal is a bit surprising. I would be interested to see how he responds to a subpoena. I suppose we may see a Miers repeat, except in his case the rationale would have to be different: he was not, unlike Miers, a close and constant advisor to our constitutional Monarch.

    Our supine congress probably won’t muster the energy to pursue matters. I have lost faith in them.

    Yesterday, I ran across an old musty (literally) book, part of a multivolume set put out by the government printing office back in 1946. It listed documents used by the Nuremberg Commission in its prosecutions of Nazi war criminals, and reprinted in their entirety the bulk of them. 8 volumes of over a 1000 fineprint pages each.

    Anyway, it was amazing how my previously light mood chilled as I read through those documents relating to interrogation (called the “third degree”) and prisoners treatment.

    What a horrid road the Nazi’s travelled down, with the concurrence of their equivalent to the OLC. I read about the necessity of enhanced interrogations for partisans (their equivalent to our “enemy combatants”) all for the purpose of saving German lives. Nothing changes, we all want to protect our own… There were also legalistic opinions of the exemption from the protection of the normal laws of various populations, like Jews, Soviets, and so
    forth. The same themes.

    It made me think of the Lawyers cases and Yoo and Bybee and Haynes, et al and shudder a bit. All unknowingly, we were walking down the same road the Nazi’s travelled before us.

    But our hands are not clean. We committed our own crimes against humanity in the fire-bombings of Dresden and Tokyo and so many other such attacks where we knew innocent civilians would be the primary casualties. War made us into barbarians ourselves, and that is the point I suppose.

  10. Rafflaw,
    couldn’t agree with you more on “No Child
    Left Behind.” I think though that this has been going on for a much longer time. The upheavals by students in the 60’s & 70’s led to a close examination of social studies teaching by educators and legislators. After all this country was founded upon the ideas of people who were the radicals of their time and represented a radical change in form of governance. From an establishment perspective perhaps we were giving our children a too “liberal” view of the rights of man. Less incendiary history began to be taught and through the years curricula became even more homogenized. NCLB was the nail in the coffin.

  11. Mike Spindell,
    While I don’t agree with everything Mr. Campbell states, I think that if there is any lack of education in the “civics” area in schools today, the culprit is the No Child Left Behind Act. The teachers now must teach to the test. Also, when you have conservatives putting out so-called science books that claim that scientists have not yet agreed upon the cause for global warming when the opposite is true; you might want to take a look at the school district administrations(school boards and administrators) that are agreeing to use these dishonest books and agreeing to remove evolution, etc. It is not the education system’s fault. It is the fault of administrators who are part of the plan to dumb us down and to control what our kids are taught. The good Benedictine Sisters that taught me in the similar era as you, would be spitting mad. And I learned the hard way to not get on the Nuns bad side! Maybe George W. and Cheney need some of the nuns discipline.

  12. John Yoo is disgusting. If you’ve seen his interviews on the Frontline documentary that came out a couple of months ago, you know that he offers little in the way of arguments in support of his position. Much like Bush and Cheney, he merely gives his own account of what he believes, and since he believes it, it must be true. I’m waiting to see if our weak Congress actually does subpoena him. It would be a nice change of events.

  13. Where is DW, this week?

    *with regard to Mukasey testimony

    Patty C 1, JANUARY 31, 2008 at 12:16 am

    DW, having copied the time listed on CSPAN this AM, I thought I had missed it, but like you caught some of it at 3pm.

    I was not impressed, except by the degree of obstinacy he employs in not answering the obvious.

    I did chuckle in the referencing of Jack Goldsmith’s book when he said that “no one thought they were breaking the law.”

    Are you kidding me? Every one was behaving as though the Constitution was some obstacle to circumvent instead of the guide which paves the way. Gimme a break.

  14. RCampbell,
    You and I agree on much. I find your concentration on the negative effect on the young to be particularly pertinent. I would add to your thoughts what I see as a complete failure by the school systems to educate our youth as to how our government and constitution are supposed to work. What I was taught in the Social Studies and Civics courses of my youth (50’s & early 60’s) gave me a good understanding of not only how government works, the historical context and the compromises made by the Founding Fathers. When my daughters were being educated in the 80’s & 90’s those elements were severely lacking. My guess is that today they are almost non-existent on the elementary and high school levels.

    Is it any wonder then that many of today’s legislators on the Local, State and National level seem blithely unaware of their function and view political interactions as akin to the battling of sports teams? Since many of these legislators have law degrees some knowledge of process and principle exists. The media, however, has no such education and their pontifications expose them as truly ignorant as to how these political/legal and social processes are supposed to work.

  15. Getting back to Professor Turley’s blog and resuming our proper position of ignoring niblick, I’d also like to state my complete agreement with Michael’s first post about this adminstration’s overt contempt of our laws and Constitution.

    I am deeply concerned that Mr Yoo’s, and others Bush administration officials’, defiance of Congress is not only a bad thing on its face, but serves as reinforcement of a far worse legacy of non-accountability this administration is leaving, for especially young Americans.

    Let us remember the social implications that have echoed through our society since Bill Clinton tried to draw a distinction between his particular daliance and “hav(ing) sex with…Miss Lewinsky. Young people saw this as permission or at least a justification to act in a certain way because a) the President did it; b) he said he wasn’t the same as having sexual relations; and c) it isn’t cheating on your spouse. Not one of Mr Clinton’s better legacies.

    Now reconsider the crimes and conduct of this administration vis a vis its apparent contempt for the rule of law, the fundamental protections of the Constitution, Congress and the US judicial system. How else can young people interpret what their elders are doing but that they need not fear the law, they can ignore it. They’ve been shown that Gordon Gecko was a pessimist, pre-emptive aggression is acceptable and that telling the same lie often enough can make it true. This is a far more corrupted and cynical and ultimately dangerous legacy for the republic than anything Mr Clinton’s foibles produced.

    The Democrats had a controversy with Dan Rostenkowski pilching stamps. The GOP had Abramoff and DeLay. The Dems had the Clinton/Lewinsky mess. The GOP (both the executive branch and with the complicity of the GOP-held pre-2006 Congress) has done so much damage to this country, it’ll take quite a while to be rid of the stench of it.

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