No Soup For Yoo: Our Right to Refuse Service to the Constitution's Torturers

11/16/2008 05:12 am ET | Updated May 25, 2011
  • David Quigg Ex-reporter, avid photographer, and blogger at too many Daves

Reading The Dark Side, as I just have, forces a stomach-turning, jaw-clenching reckoning with Guantanamo, Abu Ghraib, CIA kidnappings, secret prisons, waterboarding, and a shameful list of other soul-shattering abuses legalized by John Yoo, David Addington, and the rest of the Bush-Cheney lawyers who forcibly sodomized our Constitution after 9/11.

McCain voters: Don't flee these harsh words. The Dark Side, which was nominated yesterday for a National Book Award, makes clear that Senator McCain eventually pushed back against legalized torture. Some would say he compromised too much in the end. But it would be a stretch to use the book to paint McCain as anything like a villain. I won't try.

On the other hand, there's former Bush-Cheney lawyer John Yoo, who Jane Mayer quotes on page 153 of the book, arguing that Congress can't prevent a president from ordering torture as an interrogation technique:

"Yoo expanded on this theory when questioned about it by the director of Notre Dame's Center for Civil and Human Rights, law school professor Doug Cassel. If the president's right to torture was so absolute, Cassel asked, could no law stop him from 'crushing the testicles of the person's child'? Yoo responded, 'No treaty.' Pressed on whether a law, rather than a treaty, could prohibit the President from doing so, Yoo wouldn't rule out the possibility that no law could restrain the President from barbarism. 'I think it depends on why the president thinks he needs to do that,' he said."

This kind of thinking opened the door to dark, depraved places. Some soldiers and CIA agents were sent through that door. The result is a ugly list of un-American abuses that proved to be of questionable value in keeping us safe from terrorists. But the list -- however ugly -- doesn't capture the true horror.

Mayer shows her readers the moment when another Bush-Cheney lawyer grasped the horror. Jack Goldsmith was reviewing the tens of thousands of pages in a 2004 report by the CIA's Inspector General.

"As Goldsmith absorbed the details, the report transformed the antiseptic list of authorized interrogation techniques, which he had previously seen, into a Technicolor horror show. Goldsmith declined to be interviewed about the classified report for legal reasons, but according to those who dealt with him, the report caused him to question the whole program. The CIA interrogations seemed very different when described by participants than they had when approved on a simple menu of options."

So Goldsmith took a stand. The book has a heartening number of Goldsmiths. They should make us proud and give us hope -- even though in virtually all cases people like Vice President Cheney and his top lawyer, David Addington, managed to thwart them. These resisters are a reminder that conscience, patriotism, and a reverence for the values of the American Revolution have not died during this administration and, indeed, did not even entirely die inside this administration.

Consider Alberto Mora, a Bush-appointed lawyer in the Navy Department who waged a long, draining bureaucratic struggle against the policies enabled by people like Cheney, Addington, and Yoo. Mora grew up the son of a Hungarian mother and a Cuban father whose homelands were both ruled by repressive regimes.

"For the Moras, injustice and abuse were not merely theoretical concepts. One of Mora's great-uncles had been interned in a Nazi concentration camp, and another was hanged after having been tortured. Mora's first memory, as a young child, was of playing on the floor in his mother's bedroom and watching her crying as she listened to a report on the radio declaring that the 1956 anti-Communist uprising in Hungary had been crushed."

So Mora's inheritance primed him to realize that America, in its willingness to pay any cost to avoid another 9/11, ran a real risk of destroying itself. Mora said, "If cruelty is no longer declared unlawful, but instead is applied as a matter of policy, it alters the fundamental relationship of man to government. It destroys the whole notion of individual rights. The Constitution recognizes that man has an inherent right, not bestowed by the state or laws, to personal dignity, including the right to be free of cruelty. It applies to all human beings, not just in America -- even those designated as 'unlawful enemy combatants.' If you make this exception, the whole Constitution crumbles."

Though engrossing, brilliantly written, and even commendably empathetic of the justifiable fear that plagued people like Vice President Cheney right after 9/11, The Dark Side is bleak. Unrelentingly so.

In 335 pages, I experienced just one moment of emotional release. It was a showdown at the White House between David Addington and Deputy Attorney General James Comey, who had come to break the news that the National Security Agency's warrantless wiretapping program was illegal and wouldn't be allowed to continue. As Mayer writes, "Comey was so underwhelmed by Yoo's legal justification for the NSA program that he argued 'no lawyer' would buy it. Addington, incensed, replied that he was a lawyer and he found it thoroughly convincing. Comey reportedly shot back, 'No good lawyer,' according to another participant."

That's it. "No good lawyer." That little verbal slap against Addington was the emotional release. It may be the closest we ever get to justice.

In a more perfect world, President Bush would sprout a conscience and decide not to use the tools of his office to shield any lawbreakers from investigation and prosecution. In a more perfect world, the Yoos and the Addingtons of this disastrous administration would be stripped of their licenses to practice law. In a more perfect world, Yoo wouldn't have a job teaching at my alma mater's law school.

In a ruinously less perfect world than ours, outraged Americans would carry out vigilante justice against the architects of our slide into bureaucratized torture. Such vigilantes would be unmistakeably, inexcusably criminal. And they'd be missing the whole point of this shameful stretch of our history: that laws matter, that everyone is supposed to follow laws, that the only real test of our reverence for the rule of law comes at those moments when the law or the Constitution doesn't give us the exact justice that we wish it would.

With vigilantism thankfully out of the question and with meaningful justice and accountabily so shamefully improbable, we citizens are left with very little. But we still have something. Which brings me back to the title of this post: "No Soup For Yoo: Our Right to Refuse Service to the Constitution's Torturers."

If I owned a restaurant in Berkeley and Professor Yoo dropped in for a bowl of minestrone, I'd point to the sign marked "We reserve the right to refuse service to anyone" and I'd ask him to go eat someplace else. If I ran a cafe and Professor Yoo came in for a cup of drip, I'd ask him to go someplace else. If Professor Yoo was approaching the law school with his arms full of books, boxes, and papers, I wouldn't hold the door open for him.




But what else do we have besides shunning, besides these small snubs we can pile on until finally we can make pariahs out of people who have used their credentials, their intellects, their public office, and their substantial power to permit and excuse the torture of fellow human beings?

Don't deny John Yoo his minestrone because I told you to. Don't refuse to dryclean David Addington's suits because I said so. Read The Dark Side yourself. Watch the new PBS documentary "Torturing Democracy." Hell, watch Yoo testifying before the House Judiciary Committee. Maybe you'll see something other than legalistic bobbing and weaving.

Watch Addington in the same hearing. Maybe you'll look at it and not see Addington's contempt for Congress. Here's the full hearing.

Watch, research, read, think, and keep abreast of the latest revelations. Because my judgment certainly could be wrong. Jane Mayer could be wrong. The people who just nominated The Dark Side for a National Book Award could be wrong.

What would that feel like to judge someone so incorrectly, to deny someone, say, a bowl of minestrone and ultimately learn that the person deserved the bowl of minestrone?

We could ask the CIA official who had a hunch about a German citizen who'd been arrested in Macedonia because of a passport misunderstanding. The CIA official ordered that the German be spirited to a prison in Afghanistan where he was abused, interrogated, given "no bed, only a coarse and dirty blanket on the floor," and held "without evidence or charges, and without word to his family or anyone else outside for the next 149 days," according to Mayer's reporting.

On page 286, Mayer tells of the moment officials brought the matter to then-CIA Director George Tenet: "Tenet looked stunned. 'Are you telling me we've got an innocent guy stuck in prison in Afghanistan? Oh shit! Just tell me -- please -- we haven't used 'enhanced' interrogation on him, have we?'"

Oh shit, indeed, Mr. Tenet.