Ocasionally I run across a story that helps me define my values. Here, my subject is John Yoo, the former Justice Department employee and young, legal sage who in 2003 formulated the argument that "drugs could be used [on detainees] as long as they did not inflict permanent or 'profound' psychological damage." I initially give Yoo the benefit of the doubt, as I assume very of us are truly wicked or malicious, with even fewer being truly incompetent. Yet Woo faced no calamitous challenge in producing his opinion, simply buckling to peer pressure as a low-level employee; one apparently "experienced" enough to set forth a policy choice that ignores the Geneva Conventions. In contrast, and in the same context, I can't imagine any degree of pressure that could force me to pen the words of theYoo memo. The conclusions of that memo violate my understanding of the most basic of of human rights-- terrorist or not. If the waterboarded (and, as you'll learn below, potentially drugged) KSM is executed for "confessing" to planning 9/11, then there had better be extremely good evidence of his involvement. A coerced confession is inadmissible in every court in the United States. If we can't extend the same right to alleged terrorists, then we, the people of the United States, are equally immoral.
From: http://www.washingtonpost.com/wp-dyn/content/blog/2008/04/22/BL2008042201309_2.html?wpisrc=newsletter&wpisrc=newsletter
Joby Warrick writes in The Washington Post about Adel al-Nusairi, a former Saudi policeman captured in Afghanistan in 2002, who says he was drugged before his interrogations in U.S. custody.
"At least two dozen other former and current detainees at Guantanamo Bay and elsewhere say they were given drugs against their will or witnessed other inmates being drugged, based on interviews and court documents.
"The Defense Department and the CIA, the two agencies responsible for detaining terrorism suspects, both deny using drugs as an enhancement for interrogations, and suggest that the stories from Nusairi and others like him are either fabrications or mistaken interpretations of routine medical treatment.
"Yet the allegations have resurfaced because of the release this month of a 2003 Justice Department memo that explicitly condoned the use of drugs on detainees.
"Written to provide legal justification for interrogation practices, the memo by then-Justice Department lawyer John C. Yoo rejected a decades-old U.S. ban on the use of 'mind-altering substances' on prisoners. Instead, he argued that drugs could be used as long as they did not inflict permanent or 'profound' psychological damage. U.S. law 'does not preclude any and all use of drugs,' Yoo wrote in the memo. He declined to comment for this article.
"The memo has prompted new calls for the Bush administration to give a full accounting of its treatment of detainees, and to make public detailed prison medical records. Legal experts and human rights groups say that forced drugging of detainees for any nontherapeutic reasons would be a particularly grave breach of international treaties banning torture."
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A bit more reading on the same subject from:
http://www.slate.com/blogs/blogs/convictions/archive/2008/05/01/surprise-agreement-at-senate-hearing-on-secret-law.aspx
Surprise Agreement at Senate Hearing on "Secret Law"
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Dawn Johnsen
I testified yesterday on "Secret Law and the Threat to Democratic and Accountable Government" before the Senate judiciary committee's subcommittee on the Constitution. The hearing, chaired by Sen. Feingold, covered the range of the Bush administration's "secret law." I talked primarily about the terrible harm of secret (and profoundly flawed) opinions of the Office of Legal Counsel.
Briefly, I told the committee that the central question is: "May OLC issue binding legal opinions that in essence tell the president and the executive branch that they need not comply with existing laws—and then not share those opinions and that legal reasoning with Congress or the American people? I would submit that clearly ... the answer to that question must be no." "This combination—the claimed authority not to comply with the law and to do so secretly—is a terrible abuse of power, without limits and without checks. It clearly is antithetical to our constitutional democracy." (My written testimony is here.)
OLC's Deputy Assistant Attorney General John Elwood denied there was any problem (at least, not since he joined the government in late 2005—he pointedly avoided talking about the John Yoo and other memos that came before). He said that he agrees with, and OLC now follows, the 10 "Principles to Guide the Office of Legal Counsel" co-authored by me and 18 other former OLC lawyers in response to the initially leaked OLC torture opinion. I said no, from what we can tell from what's public, they don't follow them all, and they certainly didn't in the Yoo years. Elwood also sparred with Sens. Feingold and Whitehouse, who were incredulous at his claims that the Bush administration, in fact, is keeping Congress briefed and informed about OLC's legal conclusions and reasoning (even if it won't always release its opinions).
Republican ranking member Sam Brownback, Elwood, and Republican-invited witness Brad Berenson (former associate counsel to President Bush) took issue even with the term "secret law," claiming that OLC simply interprets laws for the government, and doesn't make law that governs the lives of private persons. You can well imagine the responses to that claim—government torture and spying don't affect the lives of people!—from me and the other witnesses invited by the Ds (Steven Aftergood of the Federation of American Scientists, Heidi Kitrosser of University of Minnesota Law School, and J. William Leonard, former director of the Information Security Oversight Office). (Also invited by the R's was David Rivkin.)
So far, all very predictable. Here is the most surprising and promising thing about the hearing: Berenson said he agreed with my central point that we have a problem with the Bush administration violating laws in secret (though he argued, and I disagreed, that on many national security matters only Congress and not the American people need to be notified). Even more notable, Berenson also agreed with my suggestion (building on a proposal from Professor Trevor Morrison) that perhaps Congress should enact legislation to require additional reporting, so that the executive branch has to tell Congress not only when it refuses to comply with a statute, but also when it (mis)interprets a statute by relying on the constitutional-avoidance doctrine. (A standard ploy, of course, by the Bush administration is to deny that it in fact is violating statutes, but instead claim it is interpreting them in order to avoid a conflict with Bush's sweeping and plainly incorrect views of his own constitutional powers.)
Berenson's agreement with my proposal led Sen. Brownback to turn to Sen. Feingold and say he would be interested in working with him to pursue the possibility of such legislation. Stay tuned ...
UPDATE 9/22/08: Apparently John Yoo did possess a shred of moral fiber: from Barton Gellman's new book on Dick Cheney, we learn on page 177 that Yoo did reject one proposed investigation technique on legal grounds, declaring that "the CIA could not bury a subject alive, even if it planned to dig him back up in time." And I thought he was all bad...
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