Twelfth in a series
The Washington Post is reporting on the use of unnamed, unknown drugs involuntarily administered to detainees at Gitmo. Not Abu Ghraib, not some black site operated by another country, GITMO; on American soil.
My nausea has returned. You know when I first read the 2003 Yoo memo [pdf] a few weeks ago, I was physically sick, and sad, so very very sad. It just killed me that a lawyer, a lawyer with the benefit of the very best education this country could provide, could have taken all that skill and debased and perverted his professional expertise to produce a memo that would be used to justify torture. It’s no different than a doctor violating his oath to "do no harm" perverting his skills to perform forced sterilizations, or grotesque mutilations and amputations in the name of "medical experimentation" upon unwilling victims.
We have discussed in the comment threads how these memos could have created the sort of anything goes mindset that led to the depredations at Abu Ghraib.
But Gitmo is different. Gitmo is American soil! We recently learned that White House officials at the highest ranks toured Gitmo and personally observed detainees being questioned using the "enhanced interrogation techniques."
They watched, they had the power to stop it and they refused to use that power to stand up to the President and Vice President. No Comey-like threats of mass resignation. No Diaz-like attempts to notify the Red Cross.
Scott Horton thinks that the cart may have come before the horse.
It increasingly appears that the Bush interrogation program was already being used before Yoo was asked to write an opinion. He may therefore have provided after-the-fact legal cover. That would help explain why Yoo strained to take so many implausible positions in the memos.
It also appears that government lawyers had told Bush administration officials that some of the techniques already in use were illegal, even criminal. In fact, a senior Pentagon lawyer described to me exchanges he had with Yoo in which he stressed that those using the techniques could face prosecution. Yoo notes in his Pentagon memo that he communicated with the Criminal Division of the Justice Department and got assurances that prosecutions would not be brought. The question becomes, was Yoo giving his best effort at legal analysis, or was he attempting to protect the authors of the program from criminal investigation and prosecution?
In any case, Yoo kept the program running. Even the man who came in to run the Office of Legal Counsel after Yoo’s departure, Jack Goldsmith, has written that he understood Yoo’s project this way. Goldsmith also rescinded Yoo’s memos.
Did they decide to deal with the inevitable criminal prosecutions by getting John Yoo to write an after the fact cover up OLC memo? If so, it would explain the precision with which he describes the criminal acts–because he had been advised which crimes had to be covered up.
If the memo is indeed "after the fact" there are two important things that flow from that:
1) It means that Yoo protestations that this is merely his completely unfounded and outside the mainstream but honestly held legal opinion, are demonstrably bullshit; and
2) That the memos are UTTERLY, UTTERLY USELESS as a legal defense. You cannot claim that you relied on the opinion when you tortured that detainee, if the opinion did not even exist on the day you committed the torture.