John Yoo's ignorance of the law has long been a source of fascination for me. I remember him being on the Newshour in 2004 and complaining about Supreme Court Justices who didn't always rule the way he wanted them to. Yoo said, "If you're just switching back and forth all the time, if you're in the middle all the time, are you really being a judge?" In other words, the Justices should be deciding cases on ideology, rather than the law. I remember thinking at the time, "this guy is a law professor at Berkeley?"
Today, Yoo takes to the Wall Street Journal to offer his strange cocktail of deception and ignorance in support of the lawlessness he enabled:
Relying on the civilian justice system not only robs us of the most effective intelligence tool to avert future attacks, it provides an opportunity for our enemies to obtain intelligence on us. If terrorists are now to be treated as ordinary criminals, their defense lawyers will insist that the government produce in open court all U.S. intelligence on their client along with the methods used by the CIA and NSA to get it. A defendant's constitutional right to demand the government's files often forces prosecutors to offer plea bargains to spies rather than risk disclosure of intelligence secrets.This just isn't true. We've had laws on the books preventing defendants from using intelligence secrets to blackmail the government for years, it's called the Classified Information Procedures Act, and it allows the government to submit the relevant facts as evidence while protecting intelligence secrets. The prosecutor submits a redacted summary with the relevant information, and the judge rules whether the summary is sufficient to allow the accused to mount a defense.
"It’s not such a summary that it’s unchallengable," says Ken Gude, an associate director of international rights and responsibilities at the Center for American Progress. "It can be cumbersome and difficult, it’s not an easy thing to do, but you can’t have a system where you don’t allow the defendant to challenge the evidence used against them." Well you can, that's the system Yoo wants. It just won't be, by any standard, a fair and just system.
Moreover, Yoo's hostility to plea bargaining is bizarre. The point of a plea bargain, Goode adds, is to secure a conviction in exchange for information. John Walker Lindh was plea bargained. He's still locked up. Granted, Yoo believes that crushing a baby's testicles is a more appropriate way of extracting information, and that anything less is "requiring...that CIA interrogators be polite," which is how he describes Obama's executive order on interrogations. (It certainly does not do that.) Yoo is on equally shaky ground legally and empirically when it comes to torture, and the faulty legal reasoning that led to the Bush administration's lawlessness is never more clear than when Yoo pretends that certain laws exist when they don't, or makes up new laws where there are none.
-- A. Serwer
