When Lawyers abet War Crimes: The case of John Yoo

Law Professor John Yoo is a "Distinguished Scholar" at the National Constitution Center in Philadelphia. That is indeed an honor, but is it deserved? As Deputy Assistant Attorney General, John Yoo drafted "Torture Memos" which gave the CIA legal justification for using "waterboarding" and other harsh interrogation techniques on prisoners. He argued that U.S. law only forbids the infliction of pain if it is "equivalent in intensity to the pain accompanying death, organ failure, or serious impairment of bodily functions".

All members of the armed forces are subject to The Uniform Code of Military Justice, (UCMJ) and Yoo´s memoranda violated its basic tenets. Article 21 of that Code adopts the Geneva Convention as military law. It prohibits at all times and places "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." Soldiers, Marines and Navy Seals who worked with detainees were caught between the UCMJ and Mr. Yoo´s legal justification for torture.

The Geneva Convention is an international treaty to which the United States is a party, and Article VI of the U.S. Constitution, called the Supremacy Clause, says that "all treaties made under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby."

Mr. Yoo contradicted Article VI when he wrote: "Our previous opinions make clear that customary international law is not federal law and that the president is free to override it at his discretion." Yoo wrote what he did in order to shield the CIA and members of the administration from prosecution under the U.S. War Crimes Act. (l8 U.S.C. 2441)

The Act defines war crimes as "grave breaches of the Geneva Conventions". It further says: "Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death."

Obviously, Mr. Yoo does not support international human rights law, even when it has been embodied in U.S. law through a signed treaty, an explicit Constitutional Article, the War Crimes Act, and the Uniform Code of Military Justice. This shows contempt for the Law, contempt for Congress, and contempt for the Constitution.

Mr. Yoo has also given his legal support to the warrant-less National Security Agency surveillance program for spying on Americans, which is in clear violation of the Foreign Intelligence Surveillance Act. (FISA)

Ten days after the terrorist attacks on 9/11/01, Mr. Yoo drafted a legal memo to the White House entitled "Authority for Use of Military Force to Combat Terrorist Activities within the United States", saying:

"Our office recently concluded that the Fourth Amendment had no application to domestic military operations," and President Bush would "be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties." That is a recipe for Martial Law.

On April 9th of 2008, the National Lawyers Guild called on the University of California at Berkeley Law School to dismiss Prof. John Yoo from the faculty, saying: "John Yoo's complicity in establishing the policy that led to the torture of prisoners constitutes a war crime under the US War Crimes Act."

If you agree that the National Constitution Center should end its affiliation with Mr. John Yoo, please contact Mr. Joseph M. Torsella, President and CEO at ceo@constitutioncenter.org, (215) 409-6600. If you believe John Yoo should be prosecuted under the U.S. War Crimes Act, please contact your Congressperson. The action you take will support The Constitution and the rule of law. Thank you.

Contact: JVMullin@comcast.net