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John Yoo's Torture Check List: Rectal Violation is Not Allowed, Crushing a Child's Testicles is No Problem

December 15, 2014

As Dick Cheney and the usual suspects circle the wagons to defend the Bush Torture Team, one its most notorious members has been particularly active in rhetorically waterboarding the Senate torture report. On Tuesday, John Yoo, who at the Bush Justice Department's Office of Legal Counsel defined torture as "in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death," published op-eds at Time and the New York Daily News. And on Sunday, Yoo appeared on CNN to defend the indefensible.
By now, it should come as no surprise that the hyper-partisan Yoo suggested that the Senate Intelligence Committee's documentation of grotesque interrogation practices was probably fabricated. But what is shocking is that John Yoo is troubled by the illegality of sadistic tactics like "forced rectal feeding." After all, back in 2005 the architect of George W. Bush's detainee torture declared the President had the authority to interrogate a terror suspect by "crushing the testicles of the person's child."
When CNN host Fareed Zakaria asked him about CIA techniques like "forced rectal feeding", "threatening to rape the mothers of prisoners" and "people with broken limbs being forced to stand for hours and hours," Attorney Yoo said that would be against the rules (if it in fact it happened):

"Those are very troubling examples. They would not have been approved by the Justice Department. They were not approved by the Justice Department at the time...They were not supposed to be done and those people who did those are at risk legally because they were acting outside their orders."

But during a December 2005 symposium in Chicago, Yoo argued that under his theory of the "unitary executive" and virtually unlimited presidential power as Commander-in-Chief, President Bush could legally order those tortures and much worse. Yoo was asked:

"If the president deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?"
"No treaty," replied John Yoo, the former Justice Department official who wrote the crucial memos justifying President Bush's policies on torture, "war on terror" detainees and domestic surveillance without warrants. Yoo made these assertions at a public debate in December in Chicago, where he also espoused the radical notion of the "unitary executive" -- the idea that the president as commander in chief is the sole judge of the law, unbound by hindrances such as the Geneva Conventions, and possesses inherent authority to subordinate independent government agencies to his fiat. This concept is the cornerstone of the Bush legal doctrine.
Yoo's interlocutor, Douglass Cassel, professor at Notre Dame Law School, pointed out that the theory of the "unitary executive" posits the president above the other branches of government: "Also no law by Congress. That is what you wrote in the August 2002 memo" (one of Yoo's memos justifying torture). "I think it depends on why the president thinks he needs to do that," said Yoo.

That flies in the face of what he told C-SPAN this week. "Looking at it now," Yoo said of disgusting offenses detailed by Senator Feinstein's Intelligence Committee report, "I think of course you can do these things cumulatively or too much that it would cross the line of the anti-torture statute." It also flies in the face of the entire legal edifice of limited presidential power Yoo erected for Bush. After all, Yoo declared that under Article II's Commander-in-Chief powers, the President could unilaterally order "a village...to be massacred" or cities vaporized with nuclear weapons. "My only point," he said, "is that the government places those decisions in the President, and if the Congress doesn't like it they can cut off funds for it or they can impeach him." And John Yoo didn't just argue that the United Nations Convention Against Torture places no barriers to the president's uses of so-called "enhanced interrogation techniques." Acts of Congress like the Foreign Intelligence Surveillance Act (FISA), he proclaimed in the PBS documentary "Cheney's Law," could not stop the president from conducting warrantless wiretapping and domestic surveillance of the American people:

"I think that there's a law greater than FISA, which is the Constitution, and part of the Constitution is the president's commander-in-chief power. Congress can't take away the president's powers in running war. They are given to him by the Constitution, in the same way that Congress couldn't pass laws saying you can't invade Normandy or you can't place Europe first in World War II. There are some decisions the Constitution gives the president, and even if Congress passes a law, they can't seize that from him."

And apparently, if the President of the United States orders the kidnapping of a detainee's child and the crushing of his testicles in order to extract intelligence, no power on John Yoo's earth can legally stop him.


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Jon Perr
Jon Perr is a technology marketing consultant and product strategist who writes about American politics and public policy.

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