Blueprints for a Police State
The Yoo-Bybee Memoranda
by Marjorie Cohn , Counterpunch
March 4, 2009
Seven newly released memos from the Bush
Justice Department reveal a concerted strategy to cloak the President
with power to override the Constitution. The memos provide "legal"
rationales for the President to suspend freedom of speech and
press; order warrantless searches and seizures, including wiretaps
of U.S. citizens; lock up U.S. citizens indefinitely in the United
States without criminal charges; send suspected terrorists to
other countries where they will likely be tortured; and unilaterally
abrogate treaties. According to the reasoning in the memos, Congress
has no role to check and balance the executive. That is the definition
of a police state.
Who wrote these memos? All but one were
crafted in whole or in part by the infamous John Yoo and Jay Bybee,
authors of the so-called "torture memos" that redefined
torture much more narrowly than the U.S. definition of torture,
and counseled the President how to torture and get away with it.
In one memo, Yoo said the Justice Department would not enforce
U.S. laws against torture, assault, maiming and stalking, in the
detention and interrogation of enemy combatants.
What does the federal maiming statute
prohibit? It makes it a crime for someone "with the intent
to torture, maim, or disfigure" to "cut, bite, or slit
the nose, ear or lip, or cut out or disable the tongue, or put
out or destroy an eye, or cut off or disable a limb or any member
of another person." It further prohibits individuals from
"throwing or pouring upon another person any scalding water,
corrosive acid, or caustic substance" with like intent.
The two torture memos were later withdrawn
after they became public because their legal reasoning was clearly
defective. But they remained in effect long enough to authorize
the torture and abuse of many prisoners in U.S. custody.
The seven memos just made public were
also eventually disavowed, several years after they were written.
Steven Bradbury, the Principal Deputy Assistant Attorney General
in Bush's Department of Justice, issued two disclaimer memos -
on October 6, 2008 and January 15, 2009 - that said the assertions
in those seven memos did "not reflect the current views of
this Office." Why Bradbury waited until Bush was almost out
of office to issue the disclaimers remains a mystery. Some speculate
that Bradbury, knowing the new administration would likely release
the memos, was trying to cover his backside.
Indeed, Yoo, Bybee and Bradbury are the
three former Justice Department lawyers that the Office of Professional
Responsibility singled out for criticism in its still unreleased
report. The OPR could refer these lawyers for state bar discipline
or even recommend criminal charges against them.
In his memos, Yoo justified giving unchecked
authority to the President because the United States was in a
"state of armed conflict." Yoo wrote, "First Amendment
speech and press rights may also be subordinated to the overriding
need to wage war successfully." Yoo made the preposterous
argument that since deadly force could legitimately be used in
self-defense in criminal cases, the President could suspend the
Fourth Amendment because privacy rights are less serious than
protection from the use of deadly force.
Bybee wrote in one of the memos that nothing
can stop the President from sending al Qaeda and Taliban prisoners
captured overseas to third countries, as long as he doesn't intend
for them to be tortured. But the Convention Against Torture, to
which the United States is a party, says that no country can expel,
return or extradite a person to another country "where there
are substantial grounds for believing that he would be in danger
of being subjected to torture." Bybee claimed the Torture
Convention didn't apply extraterritorially, a proposition roundly
debunked by reputable scholars. The Bush administration reportedly
engaged in this practice of extraordinary rendition 100 to 150
times as of March 2005.
The same day that Attorney General Eric
Holder released the memos, the government revealed that the CIA
had destroyed 92 videotapes of harsh interrogations of Abu Zubaida
and Abd al Rahim al Nashiri, both of whom were subjected to waterboarding.
The memo that authorized the CIA to waterboard, written the same
day as one of Yoo/Bybee's torture memos, has not yet been released.
Bush insisted that Zubaida was a dangerous
terrorist, in spite of the contention of one of the FBI's leading
al Qaeda experts that Zubaida was schizophrenic, a bit player
in the organization. Under torture, Zubaida admitted to everything
under the sun - his information was virtually worthless.
There are more memos yet to be released.
They will invariably implicate Bush officials and lawyers in the
commission of torture, illegal surveillance, extraordinary rendition,
and other violations of the law.
Meanwhile, John Yoo remains on the faculty
of Berkeley Law School and Jay Bybee is a federal judge on the
Ninth Circuit Court of Appeals. These men, who advised Bush on
how to create a police state, should be investigated, prosecuted,
and disbarred. Yoo should be fired and Bybee impeached.
Marjorie Cohn is president of the National
Lawyers Guild and author of Cowboy Republic.