John Yoo, principal author of the Office of Legal Counsel’s “Torture Memos” that gave the green light to the CIA and other governmental agencies to carry out torture under Bush, has this week surprisingly distanced himself from some of the torture techniques, saying on Fareed Zakaria’s CNN show on December 11, 2014 that if the Senate’s Torture Report accounts are true, that the CIA was acting outside of the Justice Department’s authorization and could be prosecutable for that.
Yoo, as those who follow these things know, has been an unabashed proponent of torture and so his sudden discovery of the law and a conscience seems startling. He famously stated in a public debate on December 1, 2005, for example, that if POTUS ordered a boy’s testicles to be crushed in order to extract information from his father, that this would be acceptable if POTUS was doing it to protect the US. Yoo needs to explain how crushing a boy’s testicles is better than sodomy with hummus, keeping detainees awake for up to seven days (a sure technique for driving someone literally mad), putting people into coffin boxes for protracted periods of time, and waterboarding people until they are unconscious and had to be revived.
As ex-Representative Jane Harman, who sat on the House Homeland Security Committee and Permanent Select Committee on Intelligence, points out in the CNN broadcast with Yoo, the OLC and Yoo at the behest of the Bush White House, redefined torture to mean only if it caused “organ failure, impairment of bodily function, or death,” so that the techniques employed that Yoo is now objecting to were still within the OLC/Yoo/Bush Regime’s own self-serving definition.
So what is going on here? Why is there some daylight between Cheney’s 1000% endorsement of everything the CIA did and declaration that the CIA was only doing what the White House absolutely asked for, and Yoo, who previously never met a torture technique that he could not and would not justify?
Relevant to answering this question is the fact that efforts to prosecute these torturers such as Yoo, Cheney, Bush, Rumsfeld, Rice, et al, have been revived in the wake of the release of the Senate Torture Report and the widespread revulsion to what this redacted report reveals. #TortureReport, for example, for at least three days in December was the top Twitter trending topic in the world. University of California at Irvine Law School Dean Erwin Chemerinsky, as another example, has publicly called for Yoo to be prosecuted for torture.
As discussed in The Nation on December 12, 2014:
Most important for the case of John Yoo, the Federal Torture Act specifically includes conspiracy, stating that ‘a person who conspires to commit an offense under this section shall be subject to the same penalties…as the penalties prescribed for the offense.’ That means Yoo could be sentenced to up to twenty years in prison if found guilty.
I think he should be,’ Chemerinsky said. “All who planned, all who implemented, all who carried out the torture should be criminally prosecuted. How else do we as a society express our outrage? How else do we deter it in the future—except by criminal prosecutions?’
Responding to Yoo’s defense that the nation was threatened and therefore had to use these measures, Chemerinsky retorted: “there’s nothing in the federal torture law that provides an exception for ‘pending plots.’
For a law school dean to call for the criminal prosecution of a law professor at another campus of the same university is unprecedented. When demands were raised in 2008 that Berkely (sic) fire Yoo, the dean of the law school at Berkeley at the time, Christopher Edley Jr., said that, while he agreed that ‘Yoo offered bad ideas and even worse advice during his government service,’ he believed that advocating ‘bad ideas’ was protected by academic freedom, and such advocacy ‘would not warrant dismissal’ from Berkeley.”
It seems likely that Yoo, who is certainly one who knows which way the wind is blowing, is worried that he might indeed be finally successfully pursued for his war crimes and he is trying to separate himself from Cheney and the CIA. I cannot think of any other reason since Yoo’s record on behalf of using torture has previously been unqualified and unblemished. If you say that if you are supposedly only stopping short of “causing organ failure, impairment of bodily function, or death,” a definition which the CIA, as narrow as that Bush Regime definition was, repeatedly went beyond, a fact not unknown to Yoo et al (it’s even discussed in the movie that celebrated torture, Zero Dark Thirty), then sodomy and drowning are not a failure to follow orders.
Besides, anyone who spends even a half an hour doing Internet research on torture will discover the phenomenon of “torture drift” where torturers will naturally resort to more and more extreme techniques as they try to force “confessions” out of their victims. Authorizations to waterboard for this many seconds and not more, to do it 183 times to one detainee but not 184 times, are of course ridiculous.
If this hypothesis explains Yoo’s distancing, it indicates the shift in political winds that scandals can manifest. The upheaval in US streets with protest springing from every pore of public life is of tremendous importance in this regard, helping to create an atmosphere in which infighting among the Republicans and infighting between Republicans and Democrats is transpiring, promising to pull the curtain back even further over the horrors that this government as a whole has been carrying out and revealing its true nature to the whole world.
About the author: Dennis Loo is Professor of Sociology at California State Polytechnic University, Pomona. He is a Harvard honors graduate in Government and received his Ph.D. from the University of California, Santa Cruz. He is the author of “Globalization and the Demolition of Society” and Co-Editor/Author of “Impeach the President: the Case Against Bush and Cheney.” Website: Dr. Dennis Loo