Saturday, March 17, 2007

Lawyers for torture.

Marty Lederman finds the ever-odious John Yoo sharing more loose thinking to justify torture. It seems like Yoo gets away with shoddy work again and again, because fellow academics are reluctant to question his motives. His credentials are impressive, but the quality of his thinking, not so much. Lederman quotes Dave Glazier as stating that "One of the most fundamental problems with Yoo's logic is that he is simply ignorant of the law of war." By now, is this a surprise?

David Luban reviews Yoo's book, War By Other Means: An Insider's Account Of The War On Terror, in the March 15 issue of the New York Review of Books. (The web version is subscription-only.) Luban, too, finds fundamental problems:
A single argument lies at the core of Yoo's book. The struggle against al-Qaeda, he insists, is a war rather than a matter of law enforcement. Therefore, in his view, the president's powers as commander in chief apply full force in the fight against al-Qaeda. . . .

Furthermore, Yoo writes, the unconventional nature of al-Qaeda and is tactics "erases the traditional boundaries between the battlefield and the home front." Therefore the battlefield can be anywhere; and on the battlefield, the commander in chief calls the shots, both figuratively and literally. . . .

The central contradiction, which Yoo never overcomes, is that while he insists the US is fighting a new kind of war, he also insists that it should be fought with the full panoply of traditional war powers. But these war powers were designed for conflicts in which the enemy is in uniform and belongs to an identifiable foreign government, and whose duration and conclusions are defined by victories, surrenders, and peace treaties.
And as Luban explains, George Washington's powers as commander in chief were constrained in all sorts of ways Yoo does not acknowledge.

Luban calls Yoo out for what he omits:
Yoo argues forcefully and intelligently, but not always honestly. Half-truths, straw men, double standards, selective quotations, significant omissions, and caricatures of his opponents' positions -- all are characteristic of War By Other Means.
And Luban follows through, cataloging misrepresentation after facile overstatement.

Can one read Yoo's work and think that he is searching for some fidelity to the framers' vision? It seems more like a pretense, or perhaps a form of intellectual gamesmenship. As Lederman notes, Yoo's philosophy appears at bottom to be utilitarian, that the end justifies the means. That also appears to be his intellectual style.

This is what happens when you assign legal interpreting to lawyers. Or maybe to an apostate originalist.
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