As John Yoo makes his case, John C. Eastman is hard at think.
As John Yoo makes his case, John C. Eastman is hard at think.
Photo by Christopher Victorio

John Yoo Stars in a Most Civilized Debate on Torture

Two days after Barack Obama's chief of staff said the administration was not inclined to back prosecutions against Bush lawyers who signed off on torture, the president backed off that statement today, saying he would leave that up to his attorney general. If this reversal bunched John Yoo's BVDs, he sure wasn't showing it inside Chapman University's Memorial Hall, where the controversial UC Berkeley law professor appeared surprisingly fit, calm and well-rested for someone whose head many on the left would like served on a silver platter.

Yoo, a visiting professor for what's left of the spring semester at Chapman's School of Law, was there to defend his decisions--armed only with John C. Eastman, the law school's dean and fellow former law clerk to Supreme Court Justice Clarence Thomas--against rabidly anti-torture Chapman law professors Katherine Darmer and Lawrence Rosenthal, who have experience as federal prosecutors on their respective resumes.

Most chairs on Memorial's main floor were taken, although the balcony remained empty. There was nothing separating the audience from the raised stage where Yoo and the other debaters spun their defenses and counter-offenses. So they could see the woman in the front row with the Lady Liberty head piece, the old guy in the white shirt identifying him as a member of Military Families for Peace or the young guy in the black tee with mugshots of George W. Bush and key members of his administration above the message, "Wanted for Mass Murder." But crouched down at the front of the stage talking to a young woman and posing with his hands in his pockets for a photo with his fellow debaters before the main program began, Yoo seemed not to have a care in the world.

Chapman's Chancellor Daniele Struppa and associate dean and law professor Celestine Richards McConville, the event's moderator, tried to release the steam building up in the room by acknowledging everyone's strong opinions on the subject of torture, reminding that civil debates on such controversial issues are only possible in academia, and asking for restraint from, as McConville put it, "whoops of joy or jeers."

That lasted about 10 seconds into Yoo's scheduled 10-minute opening, when some guy yelled, "WAR CRIMINAL!" Yoo continued trying to thank Chapman officials for making him feel at home. "HE BELONGS IN JAIL!" another yelled. "SHUT UP!" someone else countered, to loud applause that indicated most in the crowd were there to hear the speakers, not the audience members. With seeming amazement, Yoo suggested the crowd conduct the debate instead and he'd fill out the question cards, instead of the other way around. That got polite chortles.

During the rest of Yoo's allotted time: he said he'd come from "the People's Republic of Berkeley" to what he learned was referred to as "behind the Orange Curtain." . . . This president and the last one both agree that the U.S. is engulfed in a war against the Al Qaeda terrorism network. . . . Would everyone react differently if the Soviet Union carried out the 9/11 attacks, or would there be any doubt that was an act of war? . . . Those circumstances called for the strongest presidential powers that could be bestowed. . . . Incidents like 9/11 are what caused the founding fathers to include the presidency in the Federalist papers. . . . Whenever a president responds to a foreign adversary, he is accused of acting like a king or dictator. . . . This has happened to some of what are now regarded to be the best American presidents. . . . Madison and Jefferson formed what would become the Democratic Party because they disagreed with Washington's decision to stay out of the Napoleanic wars. . . . Lincoln's blockade against the South was done without the consent of Congress, as was his suspension of habeas corpus and freeing of the slaves. . . . FDR readied the war machine without congressional consent. . . . Some of the worst presidents failed to exercise their war-time powers, including Buchanan and Madison (This came with a jab against a present-day Buchanan, Pat). . . . We are now at war. . . . How we got into it and how the president uses his power is what divides us. . . . It is the president who must make the essential wartime decisions because Congress often does not.

Darmer's first 10 minutes: She strongly disagrees with the stands on waterboarding "taken by my temporary colleague." . . . Presidential power to free slaves is different than presidential power to torture. . . . These tactics have not made us safer and have tarnished our image to the rest of the world. . . . The torture statutes are pretty straightforward: anything leading to physical or mental pain that's consistent with death, organ failure or permanent impairment of specific bodily functions is considered torture. . . . The methods okay'd in the Aug. 1, 2002, memo that bears the names of Yoo and Jay Bybee (Yoo's superior at Bush's Office of Legal Counsel and now a federal appeals judge in California) definintely constitute torture. . . . But the memo contains an even more extraordinary claim: laws, rules and treaties against torture do not apply to the commander-in-chief. . . . "This is an incredible power grab by the president of the United States." . . . Torture, crunching a person's testicles, they are okay under this claim. . . . That alarmed not just those on the left, but conservatives within Bush's Justice Department who realized such a policy is not sustainable. . . . Once Yoo left the administration, Bush's own lawyers authored memos that disagreed with the Bybee-Yoo opinions. . . . The president, like all officers in the government, is not above the law. . . . Bybee is more at fault than Yoo because Bybee was Yoo's superior. . . . That's why the New York Times is now calling for Bybee's impeachment from the bench. . . . Memos that go into great detail about the kinds of torture cleared for use are "Orwellian." . . . An '05 memo indicates waterboarding was used 266 times on two detainees over a two-month period; that "extraordinary amount of torture" would indicate it does not work. . . . That the U.S. would sign torture treaties after World War II and then employ these methods is "incredibly hypocritical." . . . One who underwent it said, "If this is not torture, nothing is torture." . . . McCain called it torture. . . . The intel from this torture lead the military on "wild goose chases." . . . Even if it was established torture works, we should not engage in it. . . . It's moral and patriotic to stand against torture.

Eastman's 10 minutes: Yoo's presence on campus "has certainly made things lively around here." . . . Newspapers are limited by design or format to give the full story on these so-called torture memos. . . . They have taken things out of context. . . . Everyone should read the full 81-page memo and then make up their minds. . . . Those claiming torture are picking every word apart. . . .  Yoo's memo talked at length about prolonged mental harm vs. temporary mental harm. . . . No one talks about the long list of things Yoo did say was torture. . . . He wrote that taking advantage of post-traumatic stress disorder or depression could be torture. . . . . So could severe beatings, mock executions, burning cigarettes into skin, electrifying testicles or threatening to do any of these; none are permissible. . . . The memo went through the CIA's Inspector General. . . . Yoo found some techniques are cruel and unusual punishment. . . . His memo begins by noting he is trying to figure out where the law is on torture. . . . Policy is up to policymakers, not lawyers for the administration. . . . Dianne Feinstein and Jay Rockefeller wanted Obama to name the CIA's then-I.G. the CIA director. . . . When Obama chose Leon Panetta, Feinstein would only go along if the former I.G. was named Panetta's assistant director. . . .  If the CIA exceeded its authority thanks the Yoo torture memos, why would these senators be pushing for the I.G.'s promotion? . . . If anyone is culpable here, it is the people who define what the law is. . . . Lindsay Graham said waterboarding is not illegal. . . . The last attorney general refused to define it. . . . The law is nebulous on this. . . . It's unclear if waterboarding fits it. . . . The lawyers were charged with finding what the statutes say about this. . . . It is still unclear. . . . "To say waterboarding is abhorrent is one thing. To say it violates a statute is another." . . . The Fourth Amendment of the Constitution (which guards against unreasonable searches and seizures) does not apply to military operations, it is more for law enforcement. . . . The memo says the lawyers do recognize the Constitution could apply. . . . The conclusions are more carefully reasoned and grounded in precedent than what we're getting from the pages of the national newspapers. . . . The newspapers do a disservice to the legal people from the previous administration. . . . This war has been legally vetted more than any other war previous. . . . "I applaud the effort."

Rosenthal's 10 minutes: Yoo's positions are a profound threat to the law. . . . His Oct. 23, 2001, memo says, "the Fourth Amendment does not apply" to military operations designed to detect and prevent future terrorist attacks. . . . Instead of relying on the Fourth Amendment, Yoo pulls out some obscure legal stand from the War of 1812. . . . There have been more recent cases where the Supreme Court has upheld the Fourth Amendment against abuses of presidential power. . . . If a judge ignored the Supreme Court's text to make a ruling that effects a policy change, he or she would be called an activist judge. . . . A March 13, 2003, memo signed by Yoo states the president can authorize violations of torture treaties. . . . This seems made from President Nixon's line, "If the president does it, it is not illegal." . . . "Did the CIA capitalize on this? You bet." . . . The CIA "went wild" with waterboarding. . . . Not following the laws on torture puts the president in violation of four constitutional amendments. . . . The memo cited a completely irrelevant legal rule "Professor Yoo made up." . . . The Bush administration reproached Yoo's findings. . . . Yoo did not serve Bush well. . . . "This is unexcusable." . . . "As a lawyer, his obligation is to follow the law, not set policy." . . . Research shows torture does not work. . . . CIA did not learn anything to stop an impending attack because of it. . . . There should be a public investigation into this by non-interested parties. . . . Yoo should either stand up and agree to this or remain silent.

The program then moved to five-minute rebuttals, in the same order.

Yoo's rebuttal: "Where to start?" Five minutes can't cover all the inaccuracies. . . . This is the same type of legal maneuvers that are used in court, where an opposing lawyer states "facts" on a "white board" but leaves several key ones out. . . . Things look different in '09 than they did in '01 and '02. . . . Three-thousand Americans were killed on 9/11. . . . That forced us as a government to make decisions we never wanted to make. . . . People did not go into office wanting to make these decisions, they were foisted on them. . . . Because detainees had to be interrogated, techniques had to be cleared legally. . . . The memos were legal interpretations, not policy. . . . The memos did not advocate the administration take any positions. . . . Bill Clinton and John McCain were asked if they thought a bomb was in an American city, would they use these kinds of interrogation techniques, and they answered they would. . . . As for Rosenthal's call, "I do not endose" an investigation, "and I can't shut up either." . . . In those situations, you are not facing "law-school hypotheticals." . . . Rosenthal misreads some of the case law he is citing; the Clinton administration also did not read it like Rosenthal is. . . . There have been no attacks on U.S. soil is seven years [loud applause]. Fifty percent of the information received to stop those attacks came from interrogations.

Darmer rebuttal: Yoo is still sticking to his guns, writing in the Jan. 9, 2009, Wall Street Journal that that the Obama administration is making a mistake by not exercising torture techniques. . . . He is not looking at this right after 9/11, he is looking at it with all the facts in and still sticking to his position. . . . The memos ignore the law. . . . It was a power grab then, and it is a power grab now. . . . With or without 9/11, waterboarding will always be against what the U.S. is about. . . . The FBI did not want to engage in it in its interrogations. . . . The FBI got more information from terror suspects using rapport building than the CIA did with torture. . . . If you have to use waterboarding 266 times, it is ineffective. . . . What is effective is lawyers following the law, and if you don't like the law then the policymakers should pass new laws. . . . As it stands, torture is illegal. Richard Cohen wrotes in the Washington Times that America is a country of laws and a country of men. Something that is not American is torture. [Louder applause].

Eastman's rebuttal: "Is the president above the law? No." . . . There is a fundamental misunderstanding between statuatory law and constitutional law. . . . Yoo did not make anything up. . . . Like Rosenthal says, legislators make the laws; Yoo was only citing them. . . . Carter administration memos from the Iran hostage crisis era show that president was willing to exert similar powers without Congress. . . . Roosevelt got munitions plants up and running before Pearl Harbor without Congress."

[Note: My following of this is interrupted by a security guard coming up to a guy wearing a hood in the second row, directly in front of Yoo, and telling him to take it off. The fellow did not. The guard walked away but kept his eye on him. Okay, back to Eastman . . .]

Eastman: The laws were unconstitutional, that's why the presidents ignored them. . . . Yoo made legal cases without saying the president was bound to abide by his opinions. . . . Good lawyers present arguments. . . . Rosenthal is leaving off words with his example: "The better view" preceded "the Fourth Amendment does not apply" in the actual memo cited. . . . Memos released last weekend show the interrogation techniques have been extremely effective in stopping terrorist attacks, including one planned on a library tower in Los Angeles. . . . The former CIA director was on the weekend talk shows saying the preventive intel came after waterboarding, not before.

Rosenthal's rebuttal: This is the first defense he has heard where a lawyer is saying he lost his head in giving an opinion. . . . His job is to keep his head. . . . The ticking time bomb scenarios offered up still do not warrant ditching the Fourth Amendment. . . . Yoo memo went way beyond that. . . . It was the Bush administration that repudiated this. . . . Legally untenable. . . . He gave his client bad advice. . . . Instead of saying it is okay for the president to break the law, "every once in awhile it's worth reading the Constitution." . . . John Yoo and John Eastman are the only two still sticking up for this. . . . It's an amazing view. . . . "The Bush administration repudiated it. Who made the claims it worked? The CIA, the very agency that pushed for the techniques. Big surprise there." . . . "We should not believe the inflated claims of people who have a vested interest to protect their own mad science."

There were brief questions from the audience, written on slips of paper and handed to the moderator. One asked if we need an independent investigation. Eastman said no, Yoo chose not to answer.

Someone else asked if waterboarding is legal to apply to a terror suspect who is not governed by the same rules of military engagement as soldiers are, would it be okay for our enemies to waterboard hired soldiers like those employed by Blackwater. Darmer said there should be an absolute prohibition on torture on anyone, recognizing allowing it in some circumstances opens up our own people to torture. Yoo said American service personnel have been tortured and that Al Qaeda is not governed by anything; they take no prisoners and kill civilians on purpose. What we need to worry about is how China or Russia as a foe would act. Eastman said the question is not whether waterboarding is torture, but what torture is under the statutes. Congress telling a president how to act during time of war is what's illegal, and the president must ignore it.

Eastman is interrupted by a woman who yells, "ON BEHALF OF THE CITIZENS OF THE WORLD, I ISSUE A CITIZEN'S ARREST AGAINST JOHN YOO!" As she is being shouted down, she yells, "DON'T BE A GOOD GERMAN!" before leaving the hall.

Yoo accused his foes of putting things in the memos that are not there. None of them say the president can do whatever he wants, he claimed. There have been many Justice Department decisions over the years regarding what happens if the U.S. is attacked, but as the country learned after 9/11 there was not much direction to the military on how to act against a non-traditional force. Yoo said the kind of thinking he is hearing from his legal foes was the same "over-lawyered" approach practiced by both parties before the 9/11 attacks, and it did nothing to stop Al Qaeda.

Rosenthal: "The problem with the memos is they went too far. When the pendulum swings too far one way, it swing back. When you waterboard 183 times in a month, people are going to ask questions."

An audience member asked if there should be a truth and reconciliation hearing without criminal sanctions, just to learn what went wrong (or right) and learn from this. Eastman rejected the notion because he said he does not believe the U.S. engaged in torture. He believes such a hearing would become "a show trial" filled with partisan politics. "We have a war on our hands," Eastman said. "I think we have to keep that in mind."

But Karmer said such a probe is needed, as is the de-classification of more CIA documents. "We need to learn from our mistakes to make sure it never happens again in the future," she said to the loudest claps on the debate.   



All-access pass to the top stories, events and offers around town.

  • Top Stories


All-access pass to top stories, events and offers around town.

Sign Up >

No Thanks!

Remind Me Later >