The Biggest Lie Yoo Told

By Cernig

Torture justifier to the Bush administration John Yoo has an op-ed in the WSJ today in which he flat lies to the Amercan public about due process for captured combatants. No, I don't mean the way in which he assumes all the detainees at Gitmo are guilty, although that too is a heinious assumption unbecoming a law professor, as Glenn Greenwald ably points out.

I mean this:

In World War II, no civilian court reviewed the thousands of German prisoners housed in the U.S. Federal judges never heard cases from the Confederate prisoners of war held during the Civil War...Congress gave Guantanamo Bay prisoners more rights than any prisoners of war, in any war, ever.

...Judicial micromanagement will now intrude into the conduct of war. Federal courts will jury-rig a process whose every rule second-guesses our soldiers and intelligence agents in the field. A judge's view on how much "proof" is needed to find that a "suspect" is a terrorist will become the standard applied on the battlefield. Soldiers will have to gather "evidence," which will have to be safeguarded until a court hearing, take statements from "witnesses," and probably provide some kind of Miranda-style warning upon capture. No doubt lawyers will swarm to provide representation for new prisoners.

So our fighting men and women now must add C.S.I. duties to that of capturing or killing the enemy.

I'd already seen this notion - that lawyers will be running alongside combat troops and marines will be reading their enemies their Miranda rights before opening fire - from rightwing commenters on Newshoggers. At the time, I told them that they showed a woeful appreciation of due process for POWs as set down in the Geneva Conventions and so it's doubly bemusing to see this rightwing talking point regurgitated by someone who doubtless does know better but chooses not to say so. If I, a non-lawyer, can figure it out quite easily from the extant texts and interpretation, then for a surety John Yoo already has.

The reason no civilian court ever reviewed POW status for those captured in WW2 is that POW status is an unproblemmatic preserve of military justice as far as the Conventions are concerned. If the detainees at Gitmo had been afforded POW status from word one, there would already have been military trials for those accused of war crimes - trials including the full panoply of jurisprudence including habeas corpus rights. Those found guilty would have been sentenced, perhaps to death, and those found innocent either held until the close of hostilities legally as POWs or released as no longer a threat at the military's convenience. Those who successfully challenged their POW stutus through their pursuit of a writ of habeas corpus would have become civilian detainees for trial, including further habeas rights, by the civilian system. Again, the guilty would have been sentenced and the innocent released. No combat lawyers, no battlefield Miranda readings.

The problem, then, is caused by the introduction of the entirely spurious designation of "enemy combatant" - a creature neither fish nor fowl and a designation designed entirely to slip through the cracks of previously established military and civilian judicial processes. The only reason ever to invent this designation was to keep detainees beyond the reach of due process, including habeas rights, as a hedge against prosecutions for torture during interrogations.

The Washington Post today reveals that such torture was premeditated and top-down. The groundwork to sidestep legal responsibility for torture was likewise arranged with malice aforethought - setting the Executive up with a glib excuse to be the "only judge of its own judgment" in clear violation of the seperation of powers - and John Yoo was one of its primary architects.

No wonder he wants to lie about it.

Comments

[po]

Nice post. Short and to the point.

Yoo knows, he's just mad because someone had the nerve to tell him he was wrong. Before, all of Bush's friends were telling him what a genius he was, but that's how life works when you become the go to guy for people who only want to hear the answer they already think is right and you're willing to give it to them,, complete with fancy legal citations to make it look like you know what you're talking about.