Torture, the Law of the Land – and The Torture Mastermind Reviewed

The key players in the U.S. Senate have agreed with the Bush administration to retroactively legalize torture by U.S. government agents. The compromise deal struck yesterday will block prosecution for CIA officials who tortured detainees since 9/11.  I would expect that, in the name of “fair play,” someone will begin pushing similar legislation to give immunity to U.S. military officials who tortured detainees in Afghanistan and Iraq.

The legislative “compromise” blocks detainees from suing in federal court after they have been tortured.  Game, set, match.

And it is worse than naive for Americans to comfort themselves with the notion that the U.S. government will only torture “Islamo-fascists.” The administration’s Enemies List is far more expansive.

The deal is not yet carved into the statute book, so….

On the same topic – The American Conservative posted online today my review of John Yoo’s new book, War by Other Means. Here are some outtakes of the review:

George W. Bush has made absolutism respectable among American conservatives. And no one has done more pimping for president-as-Supreme-Leader than John Yoo, the former Justice Department official who helped create the “commander-in-chief override” doctrine, unleashing presidents from the confines of the law. At a time when Bush is pushing Congress to approve the use in military tribunals of confessions that resulted from torture, it is vital to understand the thinking of the Bush administration’s most visible advocate of “coercive interrogation.”

Yoo’s new book, War by Other Means: An Insider’s Account of the War on Terror, reads like a slippery lawyer’s brief submitted to a dim judge who gets all his information from Fox News. Though Yoo’s misrepresentations and omissions should provoke outrage, his book will likely receive accolades from many conservative reviewers. This new volume compliments Yoo’s first book, The Powers of War and Peace, which revealed that the Founding Fathers intended to permit presidents to start wars on their own whims, regardless of what the Constitution says.

Perhaps Yoo’s authoritarian tendencies resulted from his time at Harvard, where empowering an elite is always in fashion. Yoo paints every proposal for limiting the president’s power as a dangerous novelty. He is always trying to shift the burden of proof onto anyone who thinks the president should not be a czar.
While curtsying to the prevailing rhetoric on democracy, Yoo shows contempt for “government by consent.” He claims the 2004 election vindicated Bush’s torture policy: “Our nation had a presidential and congressional election after Abu Ghraib and the leaking of the [2002] memos. If the people had disagreed with administration policies, they could have made a change.”

How could the people judge the policy when the Bush administration was suppressing almost all information about it? There were no independent probes into the torture scandal during 2004. All the investigators were under the thumb of the Pentagon. The investigations were designed to look only downward—with no authority to pursue wrongdoing to the highest branches of the Pentagon and the White House. The Bush team succeeded in delaying the vast majority of damning revelations until after he was re-elected. Presumably, the public can “approve” atrocities even when the government deceives them about the actual events.

Yoo reasons like a devious personal-injury lawyer—yet it is the rights of the American people that are being run over. He is being feted by conservative foundations and think tanks, and often treated deferentially by liberals, for a theory of presidential power that would make Hobbes proud.

Yoo believes Americans should presume that the government always has a good reason for violating the law, even when it deceives the citizens about the reasoning. Yoo’s doctrines are absolutely unfit for any system with a pretense of self-government.


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25 Responses to Torture, the Law of the Land – and The Torture Mastermind Reviewed

  1. Ray September 23, 2006 at 9:26 am #

    Thanks for the critique on Yoo’s book.
    A couple months ago Yoo wrote an article criticizing Bush for going back on his promise to “make respect for federalism a priority in this administration” Yoo, the defender of states rights, has an opposite view of the expansion of federal power when it comes to foreign affairs.
    Somehow he believes that foreign policy should be the exclusive plaything of the executive, where no law should infringe on the president’s ability to experiment in military diplomacy.
    We have a long history of U.S. Presidents financing and creating future enemies. Does Yoo even understand this?

  2. Jim September 23, 2006 at 9:56 am #

    Ray – I see no evidence that Yoo gives a damn about the “endless enemies” history of US foreign policy.

    Yoo has thrived & become relatively famous by advocating and defending policies that used to be trademarks of banana republics.

    Yoo’s rise is a sign of how American intellectuals – at least the political/policy intellectuals – are little or no better than the politicians whose boots they burnish.

  3. Pero Ristow September 23, 2006 at 5:37 pm #

    I am watching a spectacle of ,not only of convulsions of American Democracy, but also of American moral degeneracy.
    When we can’t find other way to fight terrorists but by becoming beasts ourselves, simply means that our Country is reaching the stage of deep, deep crisis from which it won’t recover very soon. What difference does it make who is going to win elections when our prospective candidates pledge to follow this same moral suicidal course? How on earth did we ever come to this?
    We claim to be Christians but we follow Jewish rules of engagement which are- everything goes.This is the logical consequence of that hideous religious bastard called Judeo-Christianism,of those who have reconciled antithesis like “eye for eye, tooth for tooth” with “love thy enemy as you love thyself”.
    God, how hopelessly have we lost the Message of Christ.

  4. Jim September 23, 2006 at 5:45 pm #

    Ya, this is not a boom time for positive thinking about the American character.

    Not all politicians endorse what the Bush team is doing, but it is appalling that so few Democrats have the gonads to oppose it.

    Maybe this deal between the senators & Bush will derail in the next week or so…

  5. Bob September 23, 2006 at 8:29 pm #

    I wish you had been planted next to Mr. Yoo when he appeared on C-Span’s Washington Journal last week. I have emailed Brian Lamb about that. You are doing a yeoman’s work. I appreciate it.

  6. Victor Anderson September 23, 2006 at 8:49 pm #

    There is NO ex post facto. On exoneration, either. It is unConstitutional.

  7. Tony Litwinko September 23, 2006 at 11:19 pm #

    We are legislating ourselves into totalitarianism. How even the Republican Three can succumb to the pressure is beyond me. Doesn’t McCain remember what Bush did with his legislation last winter? The president will just issue a signing statement. We are represented by fools, knaves, and cowards, as we create the very kind of oppression that the Declaration of Independence challenged. Where are the Tom Paines, the Sam Adamses, and the Patrick Henrys of today? They aren’t in the Senate, that’s for certain, and they sure as hell aren’t Democrats.

  8. John Lowell September 24, 2006 at 1:34 am #

    Can there really be much question any more as to whether we’ve passed into an American National Socialism at this point. Rockwell, Roberts and Raimundo all have pointed to such a development in the resent past and, in my opinion, with more than a little justice. In very early thirties Germany, the liberal parties represented in the Reichstag, the Centre Party and the Democrats, began adjusting their messages and their policies to accomodate much of the drift of the populace toward the parties of the nationalist right, the Nationalists and the Nazis. Something akin to this shift seems at work with our Democratic Party, what with it’s curious paralysis when principled stands are required of it respecting wire-tapping, torture, war opposition and the like. One has the distinct impression of a type of somnambulism. But the Democrats notwithstanding, could there possibly be a more pretentious windbag than John McCain? If someone would just hold him down and force him to breathe through an ethered hankie when important moments in politics come along I’d be grateful.

    John Lowell

  9. Wade Kane September 24, 2006 at 7:31 am #

    At this point in time what is the best means of stopping this deal between the Senate and Bush from becoming a statue? Who Would Jesus Torture? If we would not want captured US Soldiers treated this way, then it IS torture. Would Bush think his interrogation methods ok if used by terrists on his daughters? BTW if serving in the US Military in Iraq is such a good patrotic deal, why haven’t Bush’s daughters joined the Army?

  10. Jim September 24, 2006 at 8:13 am #

    Bob – I didn’t know Yoo had been on C SPAN. I hope the callers made it warm for him, but…

    Funny to see the changing baseline in America. When the memo that Yoo co-wrote in 2002 first leaked out in June 2004, people were horrified. And now – “coerced confessions” are discussed as if they were not some barbaric relic.

  11. Jim September 24, 2006 at 8:15 am #

    Tony – I think McCain’s thirst for the presidency trumps everything else on this issue.

    One bright aspect of this torture debacle is that it will help more Americans recognize the moral caliber of their representatives. But, heck, this should have been obvious years or decades ago.

  12. Jim September 24, 2006 at 8:19 am #

    John – I don’t think we have passed into an “American National Socialism.” The terms of the debate accepted by major parties in Germany in the early 1930s were significantly darker than the political baselines in this country.

    However, both the political Establishment and much of the mainstream media has proven to be very comfortable with the government institutionalizing barbaric practices like torture and suspending habeas corpus. And the trend is certainly downward…

  13. Jim September 24, 2006 at 9:19 am #

    Wade – public outrage may be the best hope to derail the deal. But I’m not sure how many Americans get outraged any more about their govt’s crimes.

    It is an excellent point you make about how Bush would react if the methods were used on his daughter.

    Along a similar line, I had a paragraph in the torture chapter in Attention Deficit Democracy trying to bring home to Americans how they would feel if the tables were turned:
    Many Americans have remained oblivious to the impact that the Abu
    Ghraib photos and other torture reports have on foreigners. How would
    Americans have responded if the roles had been reversed? Consider the case of Jessica Lynch, the 20-year-old blond, blue-eyed, attractive West Virginian Army supply clerk captured after her supply convoy was attacked during the invasion of Iraq. The Pentagon and the Washington Post trumpeted grossly deceptive accounts of her capture and rescue that were later exposed as frauds (and which Lynch disavowed). What if Americans had seen photos of Lynch with blood running from cuts on her thighs, cowering before attack dogs
    lurching at her? What if Americans saw photos of a hooded Lynch with wires
    attached to her body, looking like she was awaiting electrocution? What if
    Americans saw videos of Lynch screaming as she was being assaulted by Iraqi captors? Such evidence would likely have swayed millions of Americans to support dropping nuclear bombs on Iraq.

  14. Annie September 24, 2006 at 2:02 pm #

    Playwright Ariel Dorfman on torture:
    [this excerpt speaks for itself]

    “Can’t the United States see that when we allow someone to be
    tortured by our agents, it is not only the victim and the perpetrator
    who are corrupted, not only the “intelligence” that is contaminated,
    but also everyone who looked away and said they did not know,
    everyone who consented tacitly to that outrage so they could sleep a
    little safer at night, all the citizens who did not march in the
    streets by the millions to demand the resignation of whoever
    suggested, even whispered, that torture is inevitable in our day and
    age, that we must embrace its darkness?

    Are we so morally sick, so deaf and dumb and blind, that we do not
    understand this? Are we so fearful, so in love with our own security
    and steeped in our own pain, that we are really willing to let people
    be tortured in the name of America?”

  15. charlie ehlen September 24, 2006 at 2:08 pm #

    Constitution? Rule of law? Decency? I guess those are all “out dated” and “quaint” things in America today.
    Christioan values? Well, if Bush & company are Christian, I am damn glad to be a heather/pagan!
    I served i9n the Marines and did a tour in Viet Nam. Where was Bushco? Getting deferrments and “playing” at being in the National Guard. Damn cowards!
    I am not saying that military service is something that should be required of our leaders. My opinion is, those who lead but have never served OUGHT to be very careful about asking the troops to do what they did NOT have the stones to do.
    Welcome to America 2006, land of torture and wire taps on ALL communications. Constitution? We don’t need no stinking Constitution.
    Just my 2 cents.

  16. Jim September 24, 2006 at 2:19 pm #

    Charlie – I am struck by the apparent total lack of concern by Bush, Rumsfeld, and others about how they are paving the way for captured American troops to receive the same brutal treatment that the US government now dishes out.

    The JAGS and other courageous officers have been warning on this for years.

    But perhaps Bush & Co. assume that if captured American soldiers are tortured like the US tortures foreigners, it will simply provide another great chance to make Americans rally around the flag and the president.

  17. jeff davis September 24, 2006 at 3:26 pm #

    When abu Ghraib came to light, Bush said, “We followed the law.” When, on a second occasion shortly thereafter, he repeated this phrase precisely, I took it to indicate that his advisers had settled on this response as the one which most closely fit the administration’s needs. I presume those “needs” to be technical (if tortured) truthfulness and a basic CYA to avoid criminal culpability.

    From this, and the verifiable facts surrounding the affair, I concluded that Bush/Cheney et al knew they were torturing people and needed legal cover, called in the lawyers (Yoo, Addington, and Gonzalez, but Yoo in particular), and requested from them a legal finding that would show that what they were doing was legal. Thus the careful phrase “We followed the law.”

    I have a problem with this, because it appears to me to be a very clever criminal conspiracy. The legal advisers concoct, with premeditaion, a bogus (criminally bogus?) interpretation of the law — about which they will later, claim “We were only providing legal interpretaion and in so doing legitimately performing our professional duties”. Then, based on this bogus legal advice their perp clients claim, “We followed the law.”

    Then Gonzalez gets promoted to Attorney General, giving a further layer of protection to the conspiritors.

    There must be a way to defeat this brazen and insulting scheme, and bring to justice those who employ this tactic. I’m not a legal scholar, but if feels like a conspiracy(in the legal sense) to me.

  18. Jim September 24, 2006 at 4:25 pm #

    It wasn’t a criminal conspiracy because it was the government committing the crimes.

    I suspect this administration holds the same doctrine that deposed Richard Nixon invoked in an interview with David Frost in 1977: “When the president does it that means that it is not illegal.”

    The core of the Yoo-Bybee August 2002 memo on “Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340–2340A” (the U.S. anti-torture act)was that the president can order torture and also protect people from being prosecuted for torturing.

    If the files in the White House, Justice Department, and Pentagon were opened on the issue of interrogation policy…. Well, let’s just say it would be another day in hell for the political idealists in this country.

  19. Duane September 24, 2006 at 7:40 pm #

    Everybody has an opinion. But nobody seems to have the facts. Has ANYBODY actually seen a printed copy of the amended legislation or a printed copy of the terms of the agreement struck between McCain and Bush?

  20. Jim September 24, 2006 at 10:53 pm #

    Marty Lederman has a full text of the legislative deal. He posted an excellent analysis at

  21. Prabhata September 24, 2006 at 11:47 pm #

    I agree with everything you say, except that American people did not know enough about Bush’s torture policy in 2004 because of suppresssion of almost all information about it. I have a friend who told me he understood perfectly when Bush said that the “gloves were off”, hence he was not surprised when the abuses of Abu Ghraib became known. He approved of it. People approve of Bush’s torture policies when they approve of his policies of the war on terror. I am one of those who agreed with Clinton that a bj did not constitute sex. Likewise, those who approve of Bush’s torture policies do not see it as torture. Americans are not naive. It’s very sad.

  22. Jim September 25, 2006 at 8:56 am #

    The vast majority of info about the torture policy was suppressed.

    However, the leaked photos from Abu Ghraib, the leaked Justice Department and Pentagon memos on interrogation policy, the report by General Fay, and some of the other information that came out late in the year should have alarmed anyone who was paying attention.

    But, perhaps that’s why few people were alarmed.

  23. Fred Corron September 25, 2006 at 11:03 am #

    If we examine each of Bush’s rationales for the abuse of prisoners, we find that he is keeping his true motives secret. I’ve concluded that the abuse is a form of what is known as Satanic “ritual” (repetitive, routine) abuse, which is the core activity of Satanism, despite the “assurances” of Satanists that it, along with organized Satanism, doesn’t even exist. I know that these are real phenomena, because I was abused in the form of sleep deprivation by a cell of three Satanists, who hide behind a front known as Triangles, for 18 months while essentially trapped by circumstances in that situation. For details on this perspective, see

    This would make the “war” in Iraq Satanism on a vast scale, with most of our own soldiers as victims of the abuse, along with the vast majority of Iraqis. It is also, in my opinion, a means of provoking further conflict, eventually leading to the “Apocalypse” (which Bush apparently believes he can arrange, thus “fulfilling prophecy” or “keeping promises”), as well as a means of manufacturing false “confessions” to “justify” Bush’s policies.

  24. MarkN September 25, 2006 at 5:08 pm #

    All this demonstrates that belief in the rule of law is delusional. The law will be written by, and enforced (or not enforced) by people who only want power. Our freedom cannot be protected by words or documents meant to constrain government power. If we are to have government, the only way to keep it in check is through fear. As “V” in “V for Vendetta” paraphrased Jefferson: “People should not be afraid of their governments; governments should be afraid of their people.” Written words just won’t cut it. Nor will belief in some heroic politician coming to rescue us on a white horse. That’s just the “leader” fallacy. Government itself is the real problem and needs to be eliminated from our lives.

  25. John Lowell September 28, 2006 at 9:05 am #


    Sorry to be getting back to you so late on this quetion. You say:

    “John – I don’t think we have passed into an “American National Socialism.” The terms of the debate accepted by major parties in Germany in the early 1930s were significantly darker than the political baselines in this country.”

    The point I’d made about the character of non-nationalist parties in early thirties Germany was that there occured a kind of convergence with the National Socialists, so much so that by the time of Hitler ascension to power in January of 1933 much of their official policy was indistinguishable from the National Socialists. While I’d agree with you that the situation at the time was dark, is it any less dark today to find in Congress a virtual one party state when it comes to war and policy in the Middle East? When coupled with the wire-tapping, torture and war enthusiasms I fail to see the difference?

    John Lowell