That Disturbingly Pleasant War Criminal, John Yoo

The W&M Law chapters of the Federalist Society and the American Constitution Society, along with the Institute of Bill of Rights Law, were kind enough to invite war criminal and Berkeley Law Professor John Yoo to campus yesterday, the last stop on his book tour. I don't fault them for wanting him to appear. Of course the author of the torture memos drew a packed room of more than 100, mostly law students, for a Thursday lunch lecture. People who are largely responsible for the atrocities at Abu Ghraib and Guantánamo Bay have a way of drawing a crowd.

As our way of showing discontent, a handful of us from the W&M Law ACLU wore t-shirts (see photo) and handed out Glenn Greenwald's comprehensive guide to John Yoo's War Crimes to those who attended the lecture. In case you don't want to read the entire article, here's a sampling of John Yoo's work:

If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network. In that case, we believe that he could argue that the executive branch's constitutional authority to protect the nation from attack justified his actions.

And here's Greenwald's tidy, accurate analysis:

John Yoo's Memorandum, as intended, directly led to -- caused -- a whole series of war crimes at both Guantanamo and in Iraq. The reason such a relatively low-level DOJ official was able to issue such influential and extraordinary opinions was because he was working directly with, and at the behest of, the two most important legal officials in the administration: George Bush's White House counsel, Alberto Gonzales, and Dick Cheney's counsel (and current Chief of Staff) David Addington. Together, they deliberately created and authorized a regime of torture and other brutal interrogation methods that are, by all measures, very serious war crimes.

If writing memoranda authorizing torture -- actions which then directly lead to the systematic commission of torture -- doesn't make one a war criminal in the U.S., what does?

Yoo, in his disarming way, diffused any possible tension by beginning with a story about his appearance on The Daily Show, and spending the remainder of the lecture discussing his new book on evaluating our greatest and worst presidents. In a room full of peers and professors, to accuse Yoo of the worst crimes imaginable — crimes he is almost certainly guilty of — would have garnered almost universal scorn. Still, I feel a pang of disgust with myself this morning. Instead of making such an accusation yesterday, I asked Yoo what would bring about an end to the war on terrorism, and which branch of government can and should make that call. He said that this is perhaps the toughest legal question, and suggested that much legal work remains to be done on how conflicts with non-state actors (i.e., terrorist groups) can come to a successful conclusion. (His answer, by the way, is that the President or Congress—not the courts—can and should make that call, but when and how that will happen remains a mystery.)

But it seems to me that a more difficult question looms: when will someone—whether a president, a member of Congress, or a third-year law student—muster the necessary courage to confront a war criminal like John Yoo and force him to accept responsibility for the reprehensible acts that have led directly to our diminished standing in the world? And will such a confrontation ever bring about the kind of justice we should expect here in the United States?