www.esquire.com/print-this/features/john-yoo-0608
Are Yoo's "torture memos" one of the most heinous mistakes in American history -- or could he have been right? Are Yoo's "torture memos" one of the most heinous mistakes in American history -- or could he have been right?
Read Yoo's own words in the transcripts from his interviews with Richardson. He is the man who defined torture as pain equivalent to "death or organ failure," who said that the president could crush the testicles of a child to make his father talk, who picked the lock on Pandora's box and unleashed the demons of Abu Ghraib. He's been accused of war crimes and compared to the Nazi lawyers who justified Hitler. Many good Americans would like to see him fired, shamed, even imprisoned. But in his classroom at Berkeley School of Law, John Yoo is a charming and patient teacher, popular with students and cordial to all. He's wearing an elegant blue suit offset by a shiny silver tie. His face is more like a shield than a face, expressionless and almost perfectly round, but his voice is relaxed and warm. At this moment, he's trying to get his students to define war. "So Judge Tatel says it's not so hard to say what a war is -- casualties. It lasted an hour, less than a hundred people were killed. The US sent troops to Somalia, primarily to reduce civilian casualties. The questions keep coming until the student hits overload. "There are scholars who spend their lives studying this!" To sit in a comfortable classroom as the future lawyers of America clack away on their laptops, parsing definitions with the man whose legal mind turned America into a torturing nation? "We are talking about the torture of an American citizen in an American prison by American officials," one of them told me, indignation rising fresh in his voice. Padilla is the former Chicago gang member who was arrested in O'Hare Airport in May 2002 as he returned from terrorist training camps in the Middle East with plans -- or so the government believed -- to explode a "dirty" nuclear bomb in the United States. After he was convicted on more general terrorism-conspiracy charges, his lawyers took the extraordinary step of filing a lawsuit against the junior-level lawyer they saw as the first link in the chain. "Defendant Yoo prepared the Torture Memos," they said, referring to several Justice Department opinions, including a memo that was signed on August 1, 2002, and withdrawn in shame two years later. As a result, the lawsuit claims, Padilla was held without charges for three years and eight months, completely alone under twenty-four-hour camera surveillance, with his windows blacked out and no clock or radio or TV to help him mark time. Sometimes the lights were left on for days, sometimes he was left in the dark for days, sometimes the cell was extremely hot, sometimes extremely cold. His sleep was constantly interrupted and he was threatened with death and given disorienting drugs and shackled and forced into stress positions for hours at a time. Whenever he was moved, he wore a blindfold and noise-canceling headphones to reinforce his isolation and helplessness. After a few years of this intentional effort to break his will and destroy his mind, Padilla was given to "involuntary twitching and self-inflicted scratch wounds" and his jailers often observed him weeping in his cell, so broken and passive that he had become "like a piece of furniture." Some of them, like the accusations of death threats and use of drugs, go beyond even Yoo's liberal interpretation of interrogation laws. But they remind us of what we have done and what we will continue to do. Consider the fight over Michael Mukasey's nomination for attorney general, when Mukasey refused to call waterboarding torture. He said he didn't want to put the CIA officers who made these judgments in the heat of battle "in personal legal jeopardy." But Mukasey was confirmed anyway, and four months later President Bush vetoed a law that banned waterboarding. Consider also that courts and Congress have endorsed many of Yoo's opinions, including the use of military commissions and the extended detention without criminal charges of "enemy combatants" who are American citizens. And consider this -- we still can't even agree on the basic question that Yoo is asking his law class today, which turns out to be not a quibble or a technicality but the very first question that landed on his desk on the afternoon of September 11, 2001: Is this a war? "When there's something as powerful as war, we don't want the president to just go ahead." "Because we like checks and balances and we like the Constitution?" War is so dangerous, the stakes are so high, you wouldn't want one person making that decision?" "That's why it's so important to have checks and balances," the student agrees. Like we have today, with the powers of an unchecked president -- I call that running wild." "So you're worried about errors," Yoo answers, perfectly calm. We overestimated the benefits and underestimated the costs." But now the hour is up and the students gather their papers -- and Yoo still keeps shooting out last-minute questions. "Is the president really prone to error more than the other branches? If you require Congress to give preapproval for every conflict, what is the cost? Why didn't Truman ask for a declaration of war in Korea, even though Congress would have given him one?" Most of us shrug them off and judge Yoo and Bush through the lens of Abu Ghraib and Guantnamo. As a consequence, he is being hauled before Congress in May and will be forever defined by the abuses of the Bush administration. From his office, he has a million-dollar view of San Francisco and the Golden Gate Bridge. His iPhone screen saver is a picture of his wife too, which helps take the edge off all the hate calls. On the floor, there's a shopping bag from a local hippie institution called Amoeba Music. On the wall, a framed goodbye card from the Department of Justice. "Thank you for your excellent service to America," John Ashcroft wrote. He thinks flag burning is a legitimate form of free speech. He thinks the government is "wasting a lot of resources" in the war on drugs. He thinks the phrase "war on terror" is misleading political rhetoric. He's cowriting an article that makes a conservative case for gay marriage. "Our argument is, the state should just stay out of these things, because it doesn't hurt anybody." And he's definitely alarmed by the more theocratic Republicans. "When Mike Huckabee says he wants to amend the Constitution so that it's consistent with God's law, that scares the bejesus out of me." We go for a stroll down Telegraph Avenue, and he's a bit disappointed there aren't more tie-dyed renegades. Two weeks ago, the Berkeley City Council called the local Marine recruiters "unwelcome intruders" and it turned into a huge controversy, with Republicans threatening to cut millions in city funds and thousands of protesters massing outside City Hall with signs that said "Waterboarding is Torture" and "Take a Stand Agaisnt Torture." "You can be against the war, but to be against the armed forces? "People aren't always as coherent as you'd like them to be." "It's the level of anger that really shocks me," he says. Protesters in Guantnamo orange have disrupted his class and dogged him in public forums. I talked to another Berkeley law professor who refuses to attend faculty meetings with him. "Until he atones," he said, "I don't want to be in the same room with him." "Liberals from the sixties do a great job of creating all the comforts of life -- gourmet food, specialty jams, the best environmentally conscious waters." We stop in at Amoeba Music and he cruises the sci-fi shelves -- he's a fan of Ghost in the Shell, the anime that inspired The Matrix. Usually he buys classical music, but his taste in pop runs to anthemic bands like the Who and U2. He seems very pleased that the entire record store smells like marijuana. They were teenagers during the Korean War, a serious pair who both became doctors and moved to the U S out of gratitude and a love of democracy. "They saw the United States as saving their country, and I agree with them," he says. I wo...
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