By Mark David Blum, Esq.
Like any animal with a spirit and awareness of its own existence in context of its larger universe; as the walls close in and the fences get higher and the taunting gets louder, we will fight. Be they tigers at the zoo or sharks in court rooms; the greater the fear, the greater the attack. I foretold of this day decades ago in my Honors thesis at U.C. Berkeley. (Go Bears!).
If President is just the puppet and the Vice President is really pulling the strings, if Karl Rove is to forever be known as “the President’s Brain”, then Law Perfesser John Yoo (also from U.C. Berkeley) should be known as the Architect of the War. Aided by his trusty sidekick Alberto Gonzalez, Pefesser Yoo went far afield of the role of advocate and adviser to the President. He became a co-conspirator and showed the President and staff how to walk the legal mine field. Yoo became the tour guide through the maze of constitutional and international protections and showed the current White House how to behave.
It is Yoo who taught the Bush White House the simple rule that if you call a tail a leg, then by golly, the tail must be a leg. “Plausible deniability” is the legal standard. So long as there is some colorable claim that can be made by the Executive to have taken the action they did, they cannot be held personally accountable. In a trend well endowed in corporate America and the law, the White House used lawyers to find a pathway from point A to point B. Many would call that a conspiracy to commit a crime or obstruct justice.
Thanks to Yoo, we have Guantanamo Bay. We have renditions. America is engaged in a “War” when only Congress can so declare. Left and right, civil liberties are being snatched up by the Executive. The question of who is and is not a prisoner of war, interrogations, ‘first strike policy’, and the denial of basic constitutional protections were all resolved and defined for the Bush Administration by Yoo. Yoo’s saged opinions, backed up by then Attorney General John “I-cant-beat-a-dead-guy-in-an-election’ Ashcroft, the President and the uber President (Office of the Vice President) forged ahead with their current strategies in Guantanamo and domestic and foreign spying. At last count, the President had violated more than 750 domestic and international laws. Nobody in official Washington seems to give a damn.
Now, Yoo is threatening to go nuclear. Apparently José Padilla, the 37-year-old al Qaeda operative convicted last summer of setting up a terrorist cell in Miami, sued Yoo seeking a declaration his detention by the U.S. government was unconstitutional, $1 in damages, and all of the fees charged by his own attorneys. Yoo writes this lawsuit, “by Padilla and his Yale Law School lawyers is an effort to open another front against U.S. anti-terrorism policies. If he succeeds, it won't be long before opponents of the war on terror use the courtroom to reverse the wartime measures needed to defeat those responsible for killing 3,000 Americans on 9/11.” You can almost envision Yoo all red-faced and stamping his feet, now predicting the end of civilization as we know it as schemes against the integrity of the American judicial system. Sooner or later, the current Administration leadership is going to face a court of law. Perhaps Yoo is already trying to disassemble the system for his own future protection. Just maybe he is feeling the ever-shrinking circle of those still crazed with fear sufficient to sacrifice all that Americans hold dear and precious.
At its’ core, Yoo argues that a terrorist is making the same arguments as are American libertarians and strict constructionists. Namely, Padilla says he is a criminal not a soldier. Because Congress did Not declare war against Iraq, that he Padilla was entitled to certain rights. Whether a court or later a jury agrees with this question is not the issue.
Yoo is the problem. He does not make the legal argument or even the public policy argument defending himself and his actions. Rather, Yoo goes right after you and me, the legal system, and “the left” (whatever that is) and rolls out 9-11. What Yoo wants is for the legal system to provide him and his crew with a level of immunity greater than that of any other government official. Yoo determined for himself that he should be entitled to absolute immunity. Oh, and so too should be the President and the former Secretary of Defense, and a growing list of ranking officials who managed to not be prosecuted.
Briefly: Qualified immunity is the legal standard by which We the People, keep our government in check. No matter what they do, they are always tested by “what would a reasonable and objective person in the same position do”. Wide latitude is given so that our government can function and proof for liability has to go way above negligence.
Nobody however, has absolute immunity. Nobody ever should. Absolute immunity for a government official is carte blanche for them to act as they please, with no check or balance to keep them in place or to assure nothing arbitrary or capricious is going on. With absolute immunity, you get tyranny.
The law and indeed our Constitution itself abhor absolute immunity. Judges don’t have it. Neither do District Attorneys. No Mayor, governor, police officer, or President of the United States should ever be above the law. Nobody should have absolute immunity.
Padilla who is an American citizen, is arguing in civil court, that his detention and treatment by the Bush Administration was illegal. Yoo disagrees for all the reasons we have heard the past eight years. Even though the United States Supreme Court Hamdan v. Rumsfeld made it clear to the contrary. The Supreme Court made it clear that absent a declaration of War from Congress, the nation is not at War and the Rules of War do not apply. Makes sense to me; but not to Yoo.
Yoo did not like Hamdan. He referred to the Zacarias Moussaoui trial as a circus. (I saw it as a proper application of American justice). Moussaoui had a lawyer, faced his accusers and challenged the evidence against him.
Yoo’s fundamental flaw in logic is his constantly referring to “Judicial intervention in the decisions of the president on how best to wage war.” There is no war; none has been declared. The Supreme Court has not and did not then comment on waging war; but rather on waging law and order.
Now Yoo no longer wants to answer to law and order. He wants his absolute immunity. For him, the entire legal exercise is a waste of time and money and will have a chilling effect on government service. In my opinion, the exact opposite is true. Yoo should have the courage and conviction to defend his principles anywhere and in any court room. From what does he hide?
We have seen what happens when people are held without lawyer, charge, arraignment, or procedure. Click here to see a perfect example of why we must NOT sacrifice our most basic principles no matter what the situation. The innocent must not suffer for the sins of the guilty. Though Christians believe strongly in such a concept, Americans do not.
Yoo may indeed come to be found civilly liable. He may skate. What he cannot do is close the court house doors on the argument of national security or because he is annoyed.
There will always be a place for Yoo in history. It is called a prison cell.