In Defense of John Yoo

After having read through much of Yoo’s 81-page memo, it is even clearer that Painter’s conclusions are premeditated. The memo amounts to a treatise on every imaginable domestic and international source of authority respecting the treatment of detainees, both constitutional and statutory, and even including reviews on maritime, maiming, and interstate stalking laws. In the time I could spare from my day job reviewing the memo, it is sound legal analysis, drawing the conclusion that the text and structure of the law in light of the factual background indicate that the relevant authorities do not extend to alien enemy combatants held at Gitmo.

The paragraph that Painter criticizes comes at page 80, in a section titled “Defenses,” in which Yoo explains what arguments might be made in the event that the foregoing interrogation authorities were found to apply to Gitmo detainees (which, as Yoo had just explained in the previous 74 pages, they did not). Of necessity, any discussion on the defenses available in such unique circumstances will be conjectural, based on high levels of abstraction of standards applicable in only loosely-related analogues -- criminal civilian contexts, for example. But Yoo takes as good a crack at is as can be asked of any lawyer called upon to opine on legal and moral philosophy and political theory. For his efforts, he now receives steady lashings from folks like Painter.

As for the self-defense argument about which Painter thinks so little, I have to agree with Yoo. As I said before:

The purpose of government is to protect rights, and in order to do this, it must first ensure its own survival. We do not reach the question of whether and how much to protect the rights and liberties of any individual (let alone foreign enemy combatants) until the political order can first reasonably assure those components necessary to its self-preservation. Thus, in the case of furthering such a prime directive as preventing further terrorists attacks within its own borders, as a matter of first principles a nation need not be concerned at all with notions of due process.

The common response to such arguments is that we may win the battle but lose the war by forfeiting our decency. Our leaders are not permitted the luxury of giving moral evils a wide berth and comfortable margins of error. They must skirt the ethical line in carrying out their prime directive of keeping us safe. The continued existence and prosperity of our nation requires both decency and not being blown up. One would be loathe to give up on either, but pressed, only one of those things is given to diminution.