ECLECTIC RANT: No one should care about John Yoo’s Views on Brett Kavanaugh

Ralph E. Stone
Sunday September 09, 2018 - 05:13:00 PM

In a September 3, 2018 article in the San Francisco Chronicle, “Brett Kavanaugh won’t be pawn of Trump, predicts GOP stalwart John Yoo,” Yoo, a former Deputy Assistant U.S. Attorney General in the Office of Legal Counsel in the Bush administration and now Professor at the UC Berkeley School of Law, states that we should not fear that Kavanaugh will go easy on Trump if he is confirmed to the U.S. Supreme Court.

However, Yoo is just not a credible witness for Kavanaugh.

Note that Yoo did not mention, if confirmed, Kavanaugh would likely work to preserve the Trump agenda for decades to come on such issues as abortion, gun control, immigration, voting rights, campaign-finance laws, health care, LGBTQ rights, unions, and the power of regulatory authorities, especially on the environment. Why else would Trump nominate him? 

As the article mentioned, Yoo continues to be on the hot seat for his strained interpretation of unitary executive theory (memo 1, memo 2), to justify “enhanced interrogation techniques” which included stress positions, sleep deprivation, and simulated drowning known as “waterboarding.”  

In addition, these memos argued that criminal law doesn't prohibit torture because it doesn't apply to the military; Treaties and the War Crimes Act don't prohibit torture because they only apply to uniformed enemy soldiers, and federal statutes prohibiting torture don't prohibit torture because they don't apply to conduct on military bases. 

In 2003, following the accounts of the torture and prisoner abuse at Abu Ghraib in Iraq, Yoo wrote another memo concluding "that federal laws against torture, assault and maiming would not apply to the overseas interrogation of terror suspects." This was used as justification for the abusive treatment of prisoners at the Guantánamo Bay detention camp. 

Then in 2014, Yoo sent an email to the Chronicle criticizing the release of the Senate Select Committee on Intelligence torture report, claiming the report failed to maintain "bipartisanship" that "will undermine its conclusions.” A careful reading of the Torture Report reveals why he was concerned about its release as it shows the dire consequences his memos had by laying a "legal" basis for the U.S. use of torture. 

A Justice Department’s Office of Professional Responsibility report took issue with Yoo’s dubious legal conclusions justifying the use of torture. The report concluded that Yoo had "committed 'intentional professional misconduct' when he advised the CIA it could proceed with waterboarding and other aggressive interrogation techniques against Al-quaeda suspects," although the recommendation that he be referred to his state bar association for possible disciplinary proceedings was overruled by David Margolis, another senior Justice department lawyer. 

Is torture making a comeback? During the 2016 presidential campaign, Trump said he would consider bringing back waterboarding “and a hell of a lot worse than waterboarding.” And “Bloody” Gina Haskel was nominated by Trump and confirmed as Director of the CIA. Haskel was a senior official overseeing a secret CIA “extrajudicial rendition program” that subjected dozens of suspected terrorists to savage interrogations, which included depriving them of sleep, squeezing them into coffins, and waterboarding,. I guess, to some, torture is forgivable and those who justified torture are to be forgiven and to be taken seriously. 

During the hearings on Kavanaugh’s nomination, Senators should disregard Yoo’s comments for what they are, a blatant attempt to color his Yale Law School classmate and longtime friend as an unobjectionable nominee. Remember Kavanaugh was vetted by the conservative Federalist Society, of which Yoo is a member, and was nominated by Trump to help carry out his agenda.