Marjorie Cohn is rightly disgusted with the never-ending criminality of the Bush regime, whose eight year reign gave many new faces and names to Tacitus’ old maxim.  (Which, having been repeated countless times in recent years, I needn’t repeat it yet again here.) 

 

The John Yoo – Doug Cassel exchange has been in circulation for some time, thanks, in part, to the efforts of the National Lawyers Guild.  

 

But it certainly is good to read John Yoo’s comments again.  I’d love to read a more complete transcript of Yoo’s performance, in case anyone can provide it.  

Thus, Teddy O’Reilly, writing in the University of Wisconsin‘s Daily Cardinal ("Who is watching the watchmen?" December 14, 2005), reported the exchange as follows:

 

 

Two week ago, in public debate, Notre Dame professor Doug Cassel challenged Yoo’s theory:

 

Cassel: 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?

 

Yoo: No treaty.

 

Cassel: Also no law by Congress — that is what you wrote in the August 2002 memo….

 

 

Later, both Thomas R. Eddlem ("Emerging Police State," The New American, July 24, 2006) and Evan Goldstein ("Torture and Tenure at Berkeley," Chronicle of Higher Education, May 9, 2008) used it for very fine critiques of this particular strain of American barbarism. — Here’s the Eddlem, which adds Yoo’s critical remark "I think it depends on why the president thinks he needs to do that":

 

Cassel: 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?

Yoo: No treaty.

Cassel: Also no law by Congress – that is what you wrote in the August 2002 memo….

Yoo: I think it depends on why the president thinks he needs to do that.

 

Speaking strictly for myself, I’ve always thought that much of the argument over torture and the Americans ought to be reframed. 

 

(Please don’t misunderstand me.  Where the abuse of one person by another is at issue, I do not believe that there can be any real argument in favor of the abuser.  Nor do I believe that the ethics at work here is so complicated it takes professors of law to explain it.  Instead, I believe that we can express the root ethics best either as some version of the Golden Rule (e.g., Luke 6:31) or some version of Kant’s imperative for us to "act as to use humanity, both in our own person and in the person of every other, always at the same time as an end, never simply as a means." — And even this is unduly complicated.)

 

On the contrary.  The way I’d prefer to frame the torture debate is to ask, not whether the American President is or is not The Law, such that the legality or illegality of torture depends on whether suchandsuch conduct "was authorized by the President" (quoting Condoleezza Rice — see Marjorie Cohn).  

 

But, more concretely, and much more interestingly, my preference is to ask: For any of those Americans willing to defend their state’s resort to torture, either this decade or during decades past (e.g., George Bush, Dick Cheney, John Yoo, David Addington, Ted Bundy, John Wayne Gacy, and so on — notice the preponderance of males on this list?), under exactly what circumstances would it be permitted for another party (say, a member of Al Qaeda, or an Afghan whose relatives have disappeared beneath the rubble of the seven-and-a-half year U.S. war and occupation) to torture them as well as the members of their families?

 

 

"Condi Channels Nixon: If the President Says So, It’s Not Illegal," Marjorie Cohn, ZNet, April 30, 2009

 

"Torture and the Americans," David Peterson, ZNet, June 18, 2004

 

 

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