As part of that movement, I was appalled. Not just because I want to see those who committed crimes in office punished rather than excused. Not just because I want to see the Obama White House restore accountability to government rather than cover up crimes committed by the former administration. And not just because Yoo and Bybee memo'd-up legal opinions stating that torture techniques as egregious and illegal as waterboarding were acceptable. No, there is a deeper question in play here: Why were they really asked to render these opinions in the first place?
That's a question I had to grapple with while writing The People v. Bush, a book that shows how U.S. citizens might prosecute George W. Bush and his advisors for crimes committed in office. When President Obama ordered the release of more "torture memos" by Yoo and Bybee to the public in April 2009, I watched--with a mixture of horror and fascination--the repercussions unfold. First, came words of outrage from the CIA and leaders of the Republican Party about Obama "endangering America's national security." This was followed by indecision and capitulation to the right on the part of the Democratic Party leadership. And through it all, in what I call "the week from holy hell,' came brave calls for the lawyers' prosecution by bloggers, journalists, and even, tentatively, the New York Times. But no one was putting Yoo and Bybee's memos in their proper context, a context that would explain their actions and leave no doubt as to their culpability.
At work on my book, I started assembling a chronology of torture-related events. Then I put that chronology in the overarching context of what Bush's prime objective was when he came into office: gaining control of Iraq and its super-huge reserves of oil. After doing that, everything seemed to fall into place.
We all know that Bush and Cheney, both oilmen with mighty ambitions, wanted Iraq's oil. Deputy Director of Defense Paul Wolfowitz practically boasted, three months after the invasion of Iraq, that "economically, we just had no choice in Iraq. The country swims on a sea of oil." Four years later, Alan Greenspan, federal reserve chairman, admitted in his own book that the Iraq war was "largely about oil."
The game plan took shape shortly after George W. Bush came to power in 2000. At his first National Security Meeting, President Bush made Iraq "Topic A" on his foreign policy agenda. Bush Treasury Secretary, Paul O'Neill, would later reveal that Bush told his advisors to effectively "find me a way" to get into Iraq. But finding a way was complicated business. Not only was a pretext for going to war with Iraq needed, but also needed was the legal rationale for enhanced presidential powers during a time of war so that a preemptive attack on Iraq would not only seem plausible, but even acceptable.
Enter John Yoo. Long before he crafted his "torture memos" of 2002, Yoo was valued for his expertise on executive power during wartime. It was Yoo at the Office of Legal Counsel inside the Department of Justice who came up with formulations -- crafted in secret -- that enhanced the powers of a wartime president while weakening the oversight powers of Congress.
In the months leading up to the invasion, Yoo produced legal memoranda that circumvented the Constitution and its Article I provision that declared that Congress (not the President) had the authority to declare war. He argued that the President, as Commander of Chief, could launch an attack anywhere he wanted to fight terrorists -- not just in Afghanistan but also in Iraq. Again citing the president's Commander in Chief powers, he exempted Al Qaeda and the Taliban from the protections of the Geneva Conventions in order to limit the threat of domestic prosecutions. He came up with a whole new definition of torture that was narrower than the definitions provided by the Geneva Conventions and the 1996 War Crimes Act. And, last but not least, he devised a new venue for convicting torture victims so that their false confessions (about supposed links to Saddam Hussein and 9/11) would be accepted without any of the due-process protections provided in a federal court or a court marshall. With newly created military commissions in place -- something that even columnist William Safire called "kangaroo courts" -- the detainees' false confessions could be used as evidence (not admissible in regular courts) to supplement the Bush administration's shaky and in fact unsupportable pretext that Saddam Hussein was a threat to our nation.
As I wrote in The People v. Bush, John Yoo -- with Jay Bybee's oversight and assistance -- "did it all in secret because their operations were patently unconstitutional and illegal."
It bears noting that the sadistic waterboarding of a least three high-level detainees occurred not after the invasion of Iraq, but before it. The torturing of these detainees did not happen after Yoo and Bybee wrote their memos, but before. The techniques used by the CIA were not to get actionable intelligence, but to get false confessions. All of this occurred to strengthen the case for invading Iraq.
When, in October 2002, the Bush administration had failed to come up with strong evidence of weapons of mass destruction, Bush nonetheless went on TV declaring that Saddam Hussein was an imminent threat to the nation. This was a complete fabrication, and it contradicted a classified report by his intelligence agencies dated October 1 stating otherwise. This act of sending troops to war under false pretenses would eventually implicate Bush in a murder charge, for he knew death would result, and his only defense -- self defense -- was hollow.
Yoo and Bybee provided the crowning touch to Bush's pre-emptive war on Iraq with a memo they wrote on October 23, 2002, entitled "Authority of the President under domestic and International law to use Military Force Against Iraq." It was effectively 47 pages of hypotheticals on why war in Iraq was justified. And its ultimate recourse was to come up with the desperate proposition that Bush had to act in "anticipatory" self defense. Five months later, this theory was put into action with the long-premeditated invasion of Iraq.
Once this context is understood, Yoo and Bybee emerge as the lynchpins holding together the chain of evidence leading directly to Bush, Cheney and others who plotted to get us involved in an illegal and murderous war in Iraq. And try as Bush and Cheney might to argue that "the lawyers said we could do it," they can't exactly rely on an "advice of counsel" defense because the top people in the Bush administration, assuredly told the lawyers what advice to give.
This is why John Yoo and Jay Bybee should not be exonerated, any more than Bush and Cheney should be. Instead, they should all be held to the same standard of law as anyone else in our society and should be prosecuted for the crimes they committed while in office. Obama, in his State of the Union Address, reminded us of the ideals of the Constitution, including the "notion that we are all created equal" under the law. "If you abide by the law, you should be protected by it," he said. "If you adhere to our common values, you should be treated no different than anyone else."
But what about the flip side: if you don't abide by the rule of law, no matter who you are, will you be held to account?"
Now that we know Obama's Department of Justice's is apparently bending to pressure at the highest levels to let Yoo and Bybee off the hook with a mere slap on the wrist, we must remind them that the world looks at murderous wars and war crimes differently now, and that the lessons of the Post World War II Nuremberg Trials (in which Hitler's lawyers were actually hung for their legal collaboration in his genocidal crimes) are still fresh on our minds.
This is why the Justice Robert Jackson Steering Committee, of which I am a part, takes the words of America's top prosecutor at Nuremberg trials seriously. "We must never forget," Jackson had said in his Opening Statement, "that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well."
This is also why former British Prime Minister Tony Blair recently endured five hours of questioning by Britain's Chilcot inquiry for his role in helping the United States bring about regime change in Iraq, and why he could not dodge the angry charges of "liar," "murderer,"and "war criminal" that were being captured by the media interviewing protestors outside the hearing.
The battle for accountability is far from over. In fact, it's gathering steam. The ACLU has filed suit against the Department of Justice for the long-awaited report on Yoo and Bybee, and the Jackson Steering Committee has done its own Freedom of Information Act request for the original report by the Department of Justice's ethics division, released in December 2008, which was reportedly a "scathing indictment" of the two lawyers' performance. Activists are still calling for the impeachment of Jay Bybee, now a sitting judge in the 9th circuit federal court. And two Spanish prosecutors are hot on the prosecution trail, arguing that the doctrine of universal jurisdiction gives them the right to investigate the role of Yoo and Bybee and their superiors in authorizing torture of Spanish citizens at Guantanamo.
As President Obama enters his second year in office, he, too must be held to account. But only if we, the American people, make it our priority. Covering up war crimes is not the kind of legacy Barack Obama would want for his presidency, nor is it a way to repair our nation's image in the world. Punishing the guilty for deeds they committed in the past (certainly not for acts committed in the future!) is the only way to show the world that we are truly on a new path, one that respects the rule of law, delivers a blow to impunity, and restores democracy. Let us see what Obama's second year in office will bring.
