Shame on Yoo

Respectfully submitted by Lawrence Rafferty (rafflaw)-Guest Blogger

We haven’t heard his name for quite some time now, but former Bush-era Office of Legal Counsel attorney, John Yoo is in the news again.  The United States 9th Circuit Court of Appeals threw out an appeal by convicted terrorist, Jose Padilla attempting to hold Yoo liable for the torture used on Padilla while in U.S. detention centers.

Believe it or not, the Justices stated that the law on what constituted torture was not clear when Padilla endured the Bush Enhanced Interrogation methods. “A three-judge panel of the court said laws governing combatants and the definition of torture were unclear during the years policies were crafted.  Padilla alleged he was subjected to death threats, given psychotropic drugs, shackled and manacled for hours at a time, denied contact with family or a lawyer for 21 months and refused medical care for potentially life-threatening conditions. “That such treatment was torture was not clearly established in 2001-03,” Judge Raymond C. Fisher, a Clinton appointee, wrote for the court.” LA Times

Is it just me or does it confuse and upset anyone else that Prof. Yoo, as an OLC attorney can decide for the country what actions constitute torture and when sued for those torture techniques, the Court claims that because of those very same rules declared by Emperor Yoo, the methods employed against Padilla were not established as torture?  It sounds like Prof. Yoo made up the rules of the game and is now hiding behind those very same rules.

“The 9th Circuit’s ruling said the U.S. Supreme Court did not declare until 2004 that citizens held as enemy combatants have constitutional rights.  Even now, the 9th Circuit said, “it remains murky whether an enemy combatant detainee may be subjected to conditions of confinement and methods of interrogation that would be unconstitutional if applied in the ordinary prison and criminal settings.”  LA Times

Did the Court forget that Mr. Padilla was a United States citizen when he was detained and tortured by government officials?  Wasn’t it patently unconstitutional to hold a citizen for 21 months without contact with an attorney or family members or a charge?   Here is how the court answered that question.

“The court said that someone designated as an enemy combatant by the president – regardless of whether he is a US citizen or not – is not automatically entitled to full constitutional protections.  “Padilla was not a convicted prisoner or criminal defendant; he was a suspected terrorist designated an enemy combatant and confined to military detention by order of the president,” the court said. “He was detained as such because, in the opinion of the president … Padilla presented a grave danger to national security and possessed valuable intelligence information.”   “We express no opinion as to whether those allegations were true, or whether, even if true, they justified the extreme conditions of confinement to which Padilla says he was subjected,” Fisher wrote. “In light of Padilla’s status as a designated enemy combatant, however, we cannot agree with the plaintiffs that he was just another detainee” entitled to full constitutional protection.”  Christian Science Monitor

I realize that these issues are not new.  Allowing for one person, even any President, the ability to rescind normal constitutional guarantees for United States citizens seems not only dangerous, but unconstitutional.  How can I, as a citizen, lose my constitutional protections just when I need them the most?  I contend that the 9th Circuit Court of Appeals missed an opportunity to right a wrong that could impact every citizen.  Prof. Yoo created the rules that these justices used to exempt Yoo from liability for his scurrilous definitions of torture.

Shouldn’t that have rang a warning bell in the minds of these justices?  What do you think?  Did the 9th Circuit Court of Appeals make an error?  Let us know what you think!

The full 9th Circuit Court of Appeals decision can be found here.

118 thoughts on “Shame on Yoo”

  1. MM — We do NOT have rights, but some of us have privileges. This becomes more obvious the more of us notice that we have no rights. That is, the rights of most evaporate as the privileges of the few solidify. It’s almost as if the rights are feeding the growing privileges…could that be?


    Malaysian Tribunal Finds Bush, Cheney Guilty of War Crimes

    An ad-hoc tribunal in Malaysia has found former President George W. Bush, former Vice President Dick Cheney and six other members of their administration guilty of war crimes. A panel of five judges heard testimony from victims who were tortured at U.S. military prisons around the world. The tribunal says it will send transcripts of its proceedings to the International Criminal Court.

  3. The sovereign immunity stuff is essentially shocking and out of place in our modern world anyway, but to extend it to people who CONTRACT FOR PROFIT and then commit crimes while doing so is deliberately criminal and no court should have EVER gone along with that. It’s like letting foreign diplomats who have immunity HIRE PEOPLE to commit crimes for them on our soil and extending to their mercenaries the immunity we grant to THEM.


    May 14, 2012, 12:35 pm

    Privatized Torture

    On Friday, a federal appellate court ruled that private military contractors allegedly complicit in torture at Abu Ghraib aren’t immune from prosecution. In post 9/11 America, that counts as a significant victory for the rule of law.

    As everyone knows, soldiers and civilian contractors at the Abu Ghraib prison committed criminal offenses, with military officials going so far as to hide prisoners from the Red Cross. In 2004, an independent panel of civilian defense experts found that Pentagon leaders helped create the conditions that led to the scandal. “The abuses were not just the failure of some individuals to follow known standards, and they are more than the failure of a few leaders to enforce proper discipline,” the report said. “There is both institutional and personal responsibility at higher levels.”

    Despite these findings, only low-ranking soldiers were sent to prison, including Lynndie England (she of dog-leash infamy) and her co-conspirator Charles Graner. That was it. Higher-level officials either got away scot-free, or with a reprimand.

    Over the last several years, two private military contractors linked to prisoner abuse at Abu Ghraib have been pleading for the same treatment afforded to Pentagon execs. CACI and L-3 have asserted that their wartime activities are beyond the review of courts and have claimed “absolute official immunity” from litigation. But on Friday, the Court of Appeals for the Fourth Circuit ruled 11-3 that lawsuits against CACI and L-3 can proceed to a discovery phase.

    Hawks may spin the Fourth Circuit’s decision as a victory for bleeding heart liberals. But really this is about preserving the most traditional legal principle there is: that criminals should answer for their crimes. In December, a group of retired military officers filed an amicus brief expressing concern that “persons engaging in shocking behavior that the U.S. military does not itself tolerate for its own members have broad impunity from accountability.”

    The alleged behavior, it’s worth remembering, really was “shocking,” as the retired military officers put it. The plaintiffs claim they were deprived of oxygen, food and water, and were subjected to electric shocks. They say the corporate defendants, who were hired to provide “interrogation services,” are guilty of rape and other forms of sexual assault. And here’s the kicker: The plaintiffs were released from detention without charge.

    Baher Azmy, legal director of the Center for Constitutional Rights, who helped argue the case on behalf of Abu Ghraib detainees, said it was finally “an opportunity for victims of torture at Abu Ghraib to tell their stories to an American court.” It might also shed some light on the Bush administration’s practice of outsourcing warfare in Iraq and Afghanistan to independent contractors.

  5. Idealist, yes, and it’s not JUST the educational system (but I think that one has the greatest reach). It’s probably 99% of what we come in contact with, that also filters, filters, filters, all day, every day. If you can’t adjust to a certain amount of that, you really do get horribly roughed up, but if you adjust to all of it, you get effectively annihilated and you’re just a cog. There must be some trick that allows certain people to maintain some measure of independence with dignity, and I guess it’s a lifelong effort to come to the right measure.

    That’s why the documentary of “Your Neighbor’s Son” was so interesting to me, and why it lasted so long. I think the man who was condemned, and who gave the interviews, was horrified at his own “monstrosity” but he had probably arrived at it quite honestly. Since he was a torturer, he SAW and EXPERIENCED torture. He was part of his system, and afraid of that same system, and was adjusted to that system, and the equations mapping out who he was were obscure, even to him.


    Let me trot out this again by Chomsky. How people who can internalized institutional goals are the ones selected.
    And the others rejected.

    “People within them, who don’t adjust to that structure, who don’t accept it and internalize it (you can’t really work with it unless you internalize it, and believe it); people who don’t do that are likely to be weeded out along the way, starting from kindergarten, all the way up. There are all sorts of filtering devices to get rid of people who are a pain in the neck and think independently. Those of you who have been through college know that the educational system is very highly geared to rewarding conformity and obedience; if you don’t do that, you are a troublemaker. So, it is kind of a filtering device which ends up with people who really honestly (they aren’t lying) internalize the framework of belief and attitudes of the surrounding power system in the society.”–.htm

  7. I had never even heard of “50 shades” until I saw it on these comments, so I googled it. It appears to be downright mockable. Of course the author is laughing all the way to the bank. One reviewer counted how many times the “S” and the “M” frowned at each other (124) and how many times they grinned at each other (124!) and I was done with the idea that I would read even one page. They clearly should have frowned at each other MORE!

    By the way, a friend of mine recently saw the play VENUS IN FUR and mentioned the plot. It sounds like a version of the same. Maybe less smiling. (Thank god for small favors.)

    If I am ever captured by Yoo’s thugs, and they want me to read 50 Shades of Grey, I will do it. Otherwise, not.

  8. Anon Nurse, I re-read several posts here and thought of a “story” from my recent (couple of years maybe) past. I went to a free ABA (you don’t need to be a member) conference called “stranger in a strange land” about how cross-cultural issues affect legal outcomes. Jonathan Turley was actually one of the presenters. The audience had little hand-held devices to “vote” on how they thought various cases came out. Then they’d tell us the real judges’ real opinions in the case and the audience would have been 70% correct or 15% correct or whatever; most of the audience members were attorneys of course.

    One case. An East Asian (perhaps Korean, perhaps Chinese, I can’t remember) couple had been in this country many years, more details, I forgot them. The wife admitted, at a certain point, to her husband, that she had had an affair. Something like a week later, he smashed her head with a hammer several times, killing her (not instantly, but effectively). On trial, the defense was a cultural defense: her extramarital affair had shamed him and he had reacted. The audience voted on what they thought the judge had done for sentencing. It turns out that the judge sentenced the man to probation only, but made him promise the judge personally that he would never do that again. (HOW COULD HE?) A “wow sound” passed through the large commodious room. In the silence after the gasps died down, a forensic psychiatrist on the panel commented, “His defense would have been better had he killed his wife immediately upon learning of the affair, rather than a week later!” I shouted out (couldn’t HELP myself): “It did not NEED to be better!” Giggles rolled through the room. Then we went on to the next case (a Muslim taxi driver would not transport folks who had purchased bottled alcoholic beverages at the airport).

    Just now I went back to try to see which of your comments made me think of that story, and I could not find it! So if I went OT and got silly, forgive me.

    Here’s a story, however, about torture, to get me back into the swing: Decades back I worked as a legal secretary for a lawyer who was just impossible, she just chewed up her secretaries and spat them out. She had just finished driving a competent middle-aged secretary into hysteria and to explain the problem, declared the woman to be “a late-stage alcoholic” although my (and everyone else’s) experience of the woman was that she was perfectly normal and quite competent. When I was assigned to her I said, “Let me out of this position if I can’t do it, OK?” and administration agreed (and later refused, but that’s beside the point). This lawyer and I hit it off, inexplicably. She LOVED ME! She would call me into her office and tell me about her out-of-office experiences, talk “shopping” with me, giggle at jokes with me, I didn’t know what I had done to win her approval but admin was giddy with joy (“no more problems with Jane Doe!”). So one day she called me in and told me that she had been to some kind of big gala at an embassy the night before, and had met a guy who spoke fluent Bulgarian, which she spoke too (“I hardly EVER get a chance to speak Bulgarian to anyone any more!”) and she was crazy about him. She said, with a conspiratorial wink, “He wouldn’t tell me what he does, it’s top secret, but he’s a high-ranking government physiologist…” Apparently I stared at her dumbly because I couldn’t understand why this was meaningful. “Don’t you get it?” she demanded.


    “Malisha, don’t you GET IT?”

    I had to shake my head disconsolately. Get WHAT?

    “Malisha, he’s a TORTURER!” She was practically shivering with excitement. I was stunned. It took me literally weeks to work out in my mind what happened in our little conversation in her office. She was saying that it was sexy that the guy was a government torturer working in the Balkans and very respectable in high society inside the Beltway in Washington DC! I had a very persistent series of horrible nightmares after that. I kept waking up in a start, hearing a loud “ping” sound with the fear that a dead body would fall on me. And then I had to go to work and I was actually scared of this madwoman from whom I was taking dictation! I’m sure after that job was over she described me as a late-stage alcoholic or maybe even a heroin addict, who knows.

    There was a film produced in Greece soon after the reign of the Colonels was over — I saw it once, but never was able to find it again. The name of it was “Your Neighbor’s Son.” It was a documentary of the charge, trial, interviews with and execution of a torturer in Greece. He was NOT the one who gave the orders; he was a routine, line-worker torturer. Yes, Greece put the actual torturers on trial, not just the masterminds, I don’t remember the ins and outs of the legalities involved. At the end of the film, the man (who chain-smoked throughout his interviews and was unfailingly polite and well spoken), answering the question “Why did you agree to speak with us about all this?” said: “I wanted to tell you what I did, tell you what really happened, and tell you how a monster is made.”

    Then they interviewed his father, and I cannot remember if that interview was done before or after the man’s son had been executed. The father closed the film with these words: “I cannot explain what he did. I cannot explain who he was. To me, he was just my son. I am nobody special. I am your neighbor. He is your neighbor’s son.”

    1. “To me, he was just my son.”

      I think you have brought up a really good point. I would guess that most people who torture and commit other atrocities are not sociopaths or psychopaths.

      I don’t know, but I would guess that most are very ordinary people who have been given a set of assumptions and priorities. The assumptions and priorities lead very naturally to acts that most of us would never commit and that they would never commit outside of a very narrow set of circumstances. That ought to be pretty troubling to all of us.

      As for your former boss: haven’t you been keeping up and reading ’50 shades of gray’? Torturers must know all the good stuff. Just don’t forget your safe word.

      I have wondered how some women seem to be attracted to men capable of violence and cruelty. Some have offered the conjecture that in some men sex and violence are closely associated. I suppose that if you believe that, then it is an easy step to believe that some woman closely associate sex, love, cruelty and violence.

      Well…as long as they are fully informed, consenting adults of sound mind.

      1. “haven’t you been keeping up and reading ’50 shades of gray’? Torturers must know all the good stuff. Just don’t forget your safe word.”


        I’m glad you brought up that book which my wife and daughter have read and came away disgusted. I only read page 1, of Chapter 3, my daughter and I share an E reader account and I was stupefied by the bad writing. I wonder why in this time of assault on women’s person-hood, a book has been written and heavily promoted, that extols being the sub in an s/m relationship. Curious.

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