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The Truth about Torture: Why John Yoo Should be Fired, Disbarred, and Prosecuted

 By Kenneth J. Theisen & Stephanie Tang 

John Yoo’s name is no longer attached only to the crime of torture. Because of recent media revelations and legal actions, we have learned that Yoo the Torture Professor also played a key role writing other Bush Regime “legal” memos supporting illegal government surveillance and use of U.S. troops against people on American soil. All of this patently illegal advice flows from Yoo’s notorious theory of the “unitary executive” – better known as “If the President does it, it’s legal…..”
There is no middle ground - torture must be repudiated
While many people know John Yoo’s name, most do not know his full role in the criminal enterprise known as the Bush Regime. Yoo is associated with the infamous 81-page “torture memo” written while he was a Department of Justice (DOJ) lawyer, on a two-year leave from the UC Berkeley Law faculty. He is one of the many Bush administration attorneys who provided legal advice and legal cover for the illegal actions of the Bush regime during its eight years in power. (Others include I. Lewis "Scooter" Libby, former Chief of Staff to Cheney; Alberto Gonzales, former counsel to President Bush and then Attorney General; David Addington, legal counsel and Chief of Staff to Cheney; William Haynes, Pentagon General Counsel; John Rizzo, Acting General Counsel and Senior Deputy General Counsel of the Central Intelligence Agency;and Jay Bybee, Yoo’s boss at DOJ and himself the author of torture memos). 
When President Obama has commented on the possibility of investigating illegal actions of Bush regime officials, he has tried to play to the political middle ground by claiming we must look to the future and not dwell on the past. But there can be no middle ground when it comes to torture and other war crimes. 
Yoo did not just author obscure legal memos that were then filed away in a drawer. His work was essential to the crimes carried out by the Bush regime. DOJ’s Office of Legal Counsel (OLC) has traditionally advised the executive branch of the federal government as to what is legal and illegal. If OLC says something is legal, the executive branch can proceed with its agenda. This is exactly what happened after Yoo issued his OLC memos. His memos permitted the Bush regime to conduct massive surveillance; to imprison, torture, and abuse prisoners; to hold prisoners indefinitely without legal protections including habeas corpus; and to generally disregard various provisions of the Constitution.
Legal scholar David Cole writes: "Yoo had a hand in virtually every major legal decision involving the US response to the attacks of September 11, and at every point, so far as we know, his advice was virtually always the same—the president can do whatever the president wants."
Is American torture now permissible, legal, and permanent?
The massive criminal actions committed by the Bush regime cannot be excused by platitudes from Obama. The criminal past must be repudiated and yes – punished. If we fail to hold our government and its officials accountable for the American torture state they have constructed, we are condoning that torture and it will continue to occur. This is why John Yoo must be held accountable for providing “legal cover” to the Bush administration for its crimes.
Torture is a war crime, and a crime against humanity. International and U.S. law both prohibit torture, under any and all circumstances, without exception. Yet while the Bush-Cheney torture state was being built, people in this country have been told the lie that torture is necessary to keep Americans safe, and acceptance of this “excuse” has already spread widely in society. A 2008 survey by WorldPublicOpinion.org indicated that only 53% of Americans surveyed opposed torture in all circumstances. Similar polls conducted since 9/11 also reflect that many Americans are willing to accept torture. The Fox Network TV series “24,” watched by millions (and reportedly a favorite of U.S. troops stationed in Iraq), regularly portrays the use of torture as a legitimate tool in America’s “war on terror.” A 2006 Pentagon survey of troops in Iraq found that more than a third of surveyed troops believed that torture was acceptable if it helped save the life of a soldier or helped obtain information about insurgents.
In fact, what the Bush Regime brought forth in the wake of 9/11 was not a “war on terror,” but a war of terror against the people of Iraq, Afghanistan, Pakistan, Iran, and other nations. As the U.S., under Bush and now Obama, has sought to assert control over that entire region and its people, torture has become a standard weapon in the American arsenal to terrorize the entire planet. This cannot be allowed to continue.
Yoo & the Lackawanna Six – setting the stage for martial law and a police state
 
Yoo did not limit his legal opinions to torture issues. In 2002, some in the Bush regime wanted to test the Constitution by using the military to make arrests in the war of terror within the U.S. Yoo’s legal memos provided support.
 
The Lackawanna Six were Yemeni-Americans from New York who traveled to Pakistan and Afghanistan in the spring and summer of 2001 and attended an alleged al Qaeda training camp.  Some of them said they fled the camp after they heard appeals for violence against America. The Six were arrested by the FBI in September 2002. DOJ announced that it had "identified, investigated and disrupted an al-Qaeda-trained, terrorist cell on American soil."  President Bush hyped the arrests in his 2003 State of the Union address. This was the public information reported at that time.
 
But just before the FBI arrested the six men, Cheney wanted to send in the military to grab them. The administration feared it did not have enough evidence to arrest them on criminal charges And Cheney reportedly “argued that the administration would need a lower threshold of evidence to declare them enemy combatants and keep them in military custody.” In this, Cheney was relying on a memo by John Yoo, who had written: “The president has ample constitutional and statutory authority to deploy the military against international or foreign terrorists operating within the United States.” Cheney wanted to have the military seize the Lackawanna Six to set a precedent for using the military on U.S. soil as part of an attempt to set up a form of martial law to fight terrorism. Yoo’s memo would have made Cheney’s plan possible, although due to infighting within the Bush regime at the time, this did not happen.
 
Yoo and the Massive Surveillance Launched During the Bush Regime
 
The Bush regime shortly after 9/11 launched various surveillance programs. The details and even the names of most of these massive spying programs still remain secret. It is also not known to what extent these programs continue to operate. But what has been revealed publicly indicates that millions, if not billions, of emails, phone calls, and other telecommunications have been intercepted by U.S. government intelligence agencies. Billions of financial records have also been the subject of these programs.  And despite the Bush regime’s lies that these surveillance operations were limited to spying on “terrorists” we now know that they actually included the communications of millions of U.S. citizens and others throughout the world. (We recommend the book, “The Shadow Factory: The Ultra-Secret NSA from 9/11 to Eavesdropping on America,” by James Bamford for an account on the extent of spying conducted by the U.S. government against its citizens.)
 
Yoo wrote secret legal memos for the Bush regime that professed to supply a legal basis for illegal surveillance. Much of the content of these memos is still classified. But what has already been made public is revealing. In one memo, Yoo concluded that the Foreign Intelligence Surveillance Act (FISA) could not "restrict the president's ability to engage in warrantless searches that protect the national security" and that "unless Congress made a clear statement in FISA that it sought to restrict presidential authority to conduct warrantless searches in the national security area - which it has not - then the statute must be construed to avoid such a reading."
The massive spying that began under the Bush regime and that was legally justified by Yoo is one of the best kept secrets of the government. What is known publicly about these surveillance programs is only the tip of the iceberg.
 
Are There Historic Precedents for Prosecuting John Yoo For War Crimes?
 
Yes. Look up the history of the Nuremberg Trials after World War II, especially the case U.S. v. Altstoetter, in which judges, prosecutors, and German Ministry of Justice officials who had served the Nazi regime were charged, tried, and convicted of war crimes because their “legal” work enabled the Nazis to carry out the Holocaust under color of law.
 
Recall the role of Adolf Eichmann, sometimes referred to as “the architect of the Holocaust” because he facilitated and managed the logistics of mass deportations of Jews and others to the Nazi extermination camps. His bureaucratic role was critical to the death of millions in the Holocaust.
 
John Yoo devoted his legal skills to serving as legal architect of many of the Bush regime’s crimes, including torture, massive surveillance, unlawful and indefinite detention, and war. As a direct result of Yoo’s legal memos: thousands have been subjected to torture, tens of thousands incarcerated, tens of millions spied upon, and a million have died in U.S. imperialist wars. Without the provision of “legal cover,” many of these crimes would not have been possible.
 
Yoo is Unrepentant and Boldly Advocating the same Policies He Set Forth in his OLC Memos
 
As Yoo’s role in the Bush/Cheney Torture Team has come more and more to light, he has gone on the offensive, giving speeches and publishing commentaries – he’s now a regular op-ed writer for the Philadelphia Enquirer.  In a Wall Street Journal commentary he labeled his critics' arguments as "absurd" and "foolhardy" responses to "the media-stoked politics of recrimination."   Yoo seems to echo former Vice-President Dick Cheney, who consistently and belligerently argues that the Bush regime’s actions in the U.S. “war on terror” were justified. But this should not be surprising: while Yoo was at the OLC, he regularly conducted back-door conversations with Cheney and Cheney’s legal counsel, David Addington. These three and other lawyers and officials in the Bush regime regularly consulted on how to best carry out their illegal agenda, while using OLC legal opinions to provide proper legal cover.
 
Because Yoo has been so vocal, and because he has come to symbolize many of the abuses of the Bush regime, it is even more important that he be held accountable for his actions. John Yoo should be fired, disbarred, and prosecuted.
 
A lawyer whose advice enabled the White House, the CIA, and the U.S. military to commit torture and other crimes is not protected by “freedom of speech.” A university which allows a war criminal to teach constitutional law and ethics courses to the next generation of lawyers and judges is not protecting “academic freedom,” it is protecting war crimes. A post-Bush/Cheney administration that refuses to fully repudiate – and prosecute – war crimes is not the “change” anyone hoped for.
 
Protest and resistance against Yoo and his Crimes Must Expand
 
Where Yoo has taught and appeared there has been protest and resistance exposing his criminal role within the Bush regime. But still Yoo is allowed to teach, remain a lawyer, and he has not been prosecuted. If you think he should be fired, disbarred, and prosecuted what can you do?
·         You can be part of the protest and resistance that has already had a strong and growing influence on whether John Yoo and all the other Bush regime war criminals are held accountable. Since World Can’t Wait’s beginnings in 2005, this is a sample of ways people have taken responsibility to publicly call for justice and an end to the torture, related to John Yoo and his presence at UC’s Boalt Hall and elsewhere:
At every public appearance by John Yoo (lectures, book signings, debates) protesters appear to denounce his crimes and demand that he be brought to justice. Protesters often don orange jumpsuits/black hoods to represent the detainees and torture victims.

·         Yoo’s attempt to become a professor of law once again, after his time serving Bush/Cheney’s OLC, is disrupted by widespread controversy on every campus where he teaches:.
            At UC Berkeley in 2005, “prisoners” attended his class and asked Yoo to hold the “leash” attached to a jumpsuited “prisoner” (a la the infamous Lynddie England photo of the Abu Ghraib prisoner with the dog leash around his neck). At Chapman (in Orange County, California), Yoo was a visiting professor in spring 2009. There he was similarly greeted and a big debate followed in the student newspaper.
            Yoo’s class was visited/disrupted most recently by an Australian “reality-comedy” TV show, which sent a man in an Abu Ghraib costume into Yoo’s class, who spoke up (with the cameras rolling) to demand to know “How long must I stand here before it’s considered torture?”
·         Large “town hall” public meetings have presented expert speakers to inform and mobilize audiences to action. Debates have occurred in communities and on campuses too.

·         Newspaper articles and op-eds, radio news, and blogs all help spread the word, and spread the resistance.

·         City governments everywhere could follow the example of Berkeley, California where in 2008 the City Council passed a resolution to call on the incoming U.S. Attorney General and the U.S. Attorney for Northern California to prosecute Yoo for war crimes, and to ask UC Berkeley to fire Yoo if he's convicted.

·         For two years, the graduation ceremonies at UC Berkeley Law (Boalt) have been the site of large-scale mass protest actions – World Can’t Wait, National Lawyers Guild, human rights and civil liberties groups working against torture, and others have called on the graduates to protest Yoo and torture (and many orange ribbons have been seen pinned onto graduates’ gowns!)

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World Can't Wait mobilizes people living in the United States to stand up and stop war on the world, repression and torture carried out by the US government. We take action, regardless of which political party holds power, to expose the crimes of our government, from war crimes to systematic mass incarceration, and to put humanity and the planet first.