Many Alaska lawyers were shocked and appalled to learn that the leadership of the Alaska Bar Association had invited John Yoo, a former Justice Department lawyer and author of the infamous torture memos, to be honored as the keynote speaker at today's annual convention.
The Bar Association is responsible for protecting Alaskans by policing its members and punishing unethical conduct, so it was at least ironic that it chose Yoo, a lawyer who "committed intentional professional misconduct" when he failed to provide "thorough, objective and candid" legal advice regarding the legality of certain interrogation techniques, according to a lengthy investigation by Justice's Office of Professional Responsibility (OPR).
Yoo's speech to Alaska lawyers will be on presidential powers. His extreme views are reflected in this interview with an OPR investigator:
Q: What about ordering a village of resistants to be massacred? Is that a power the president could legally ...
A: Yeah. Although, let me say this. So, certainly that would fall within the Commander-in-Chief's power over tactical decisions.
Q: To order a village of civilians to be (exterminated)?
A: Sure.
According to Yoo, the U.S. president has the dictatorial power to ignore U.S. statutes, the Uniform Code of Military Justice, international laws and treaties, and the Nuremberg precedents and order war crimes, including torture and the mass murder of civilians. This is the quality of legal analysis and, frankly, psychopathic lawyering, that Yoo has been invited to share with us.
What made Yoo notorious were two memos he wrote in 2002 regarding interrogation techniques -- one to the CIA -- that were a model of dishonest legal analysis designed to reach a conclusion favored by his superiors.
Jack Goldsmith, another Justice official, later described Yoo's legal work, "In their redundant and one-sided effort to eliminate any hurdles posed by the torture law, and in their analysis of defenses and other ways to avoid prosecution for ... violation of federal laws, the opinions could be interpreted as if they were designed to confer immunity for bad acts." Harold Koh, then Dean of Yale Law School, called Yoo's memos "perhaps the most clearly legally erroneous opinions I have ever read."
The Yoo memos are linked to one by the Defense Department's chief counsel that authorized torture techniques, including beatings, severe sleep deprivation with 20 hour interrogations, acute stress positions for hours, and many others to be used at Guantanamo and elsewhere. Three official investigations confirmed the migration theory and one concluded that "augmented techniques for Guantanamo migrated to Afghanistan and Iraq where they were neither limited nor safeguarded."
These legal authorizations led to the detainee abuses that later made the American prison at Abu Ghraib in Iraq infamous throughout the world. The exposure of the Iraqi prison photographs depicting the abuse did catastrophic damage to our nation's claims to represent justice under law. Yoo didn't cause our nation's foray into torture, but he did furnish the initial legal justifications, which were central to its propagation.
In an earlier legal memo, Yoo had concluded that the Geneva Conventions did not apply to al-Qaida and Taliban detainees. The U.S. Supreme court later condemned the blatant illegality of the interrogation techniques approved by Yoo and pointedly observed that violations of the Convention are considered "war crimes."
America prosecuted and imprisoned 16 Nazi lawyers and judges in 1947 because they "consciously and deliberately suppressed the law" and contributed to crimes, including torture, that were "committed in the guise of legal process."
Yoo cannot now safely travel to many European countries because they might invoke the provisions of the Convention Against Torture that condemn "complicity" or "participation" in torture and demand that signatory nations exercise their jurisdiction to prosecute suspects like Yoo.
It is Yoo's history of unethical conduct, his likely criminal complicity in torture through providing its legal rationale and authorization, and his role in policies that led directly to crimes that damaged America's reputation that make his selection as a keynote speaker such an outrageous affront.
Brant McGee has been an Alaska lawyer for 33 years. He lives in Anchorage.
By BRANT McGEE