WH Lawyer: President Can Torture a Terrorism Suspect's Child

[At this point, this article is a catch-all of real-time journalism and I'm moving it back to the top to represent that.]

For the record, I am not familiar with the site this report appears on.

However, news that former White House lawyer John Yoo believes that the president has the right to order a terrorism suspect's child to be tortured (specifically, "crushing the child's testicles") is rather, um, breathtaking.

In December, Yoo debated human rights scholar Doug Cassel and the following exchange was recorded:

Cassel: If the President deems that he’s got to torture somebody, including by crushing the testicles of the person’s child, there is no law that can stop him?
Yoo: No treaty.
Cassel: Also no law by Congress. That is what you wrote in the August 2002 memo.
Yoo: I think it depends on why the President thinks he needs to do that.

Audio is available here via revcom.us, another site I'm not familiar with.

Yoo is basically saying that if the President thinks that act A will help the War Against Terrorism, then act A is acceptable, whatever it may be.

Does Yoo think that executive prerogative in this area extends to a situation where the White House has good information that a nuclear device has been smuggled into Los Angeles, so to foil the terrorist plot, the President orders a preemptive nuclear strike against Los Angeles? How far does Yoo think the "it depends on why the President thinks he needs to do that" caveat carries in law and morality?

Update: I e-mailed some other bloggers so a variety of folks are looking into this. This .pdf calendar from the Chicago Council on Foreign Relations demonstrates that the debate did take place. I've got an e-mail out to Doug Cassel requesting comment.

It's funny, because the site that all instances of this story point back to is the site of the Revolutionary Communist Party of the United States. Ordinarily, that alone would disqualify an item as bloggable to me, but it turns out that RevCom.us is based in Chicago as well.

I'm still calling this unverified, but highly interesting. Hopefully we can get some confirmation on the dialogue quoted above very soon.

Further update: The program officer of the Chicago Council on Foreign Relations, Dick Prall, responded to a query by Shakespeare's Sister on this topic and stated that there is no transcript nor was recording of the event permitted. He says that neither he nor anyone else at the council can comment on the validity of the recording, but "I will say I was at the event and this seems suspiciously out of context and i would find it irresponsible of anyone to perpetuate it as otherwise."

I agree that the 19 second audio link is remarkably context free. Still exploring it though.

Yet another update: Article author Phillip Watts wrote back to me with a link to additional audio, though it still ends in about the same place. It can be found here, and it does answer the question of whether Yoo believes a president can round up and execute people at will (Yoo describes such a scenario as "a system that had no rules", which in lawyer-speak might not mean it's a solid no). Here's a quick and dirty transcript of the exchange up to the point quoted above:

YOO: I'm not, or I was not arguing that because we face something new in 9/11 that means that we oughta toss out all the rules and just do whatever we want. But I was making the claim, is that, and this is not an unfamiliar situation for lawyers, is that we have a set of rules that were designed for a different kind of conflict. And what I think the Bush administration is doing is trying to adapt the principles of those rules to this new kind of conflict but it's not entirely obvious and there's no clear, i don't think, any clear right answers right now about how to do that. So one thing, I don't disagree with much of what Doug has described as an international human rights framework. i do think for example that all detainees we've captured are entitled to humane treatment. What we are disagreeing about is the space between humane treatment and torture.
(cross talk)
But that doesn't mean that I'm saying there are no rules at all that the president could have people randomly executed, that would be a system that had no rules. But what I'm saying is that in this area between humane treatment and torture I think the United States is entitled to try to figure out how to apply previous rules to this new kind of conflict.
CASSEL: But John, your August 2002 memo said that the president as commander in chief had a constitutional power to order torture and there was nothing that the congress or a treaty could do to stop it. And now you're saying
'well you're not really saying that.' Have you changed your mind since August
2002?
YOO: No, I guess, that, I think is a matter of just pure domestic constitutional law, so i think for example that, I don't think a treaty can constrain the president as commander in chief though, I think is the argument I'm making. The
argument I'm making about adaptation of rules is a question of what the United States should do as a matter of international law, which I treat as being a separate and distinct body of law from domestic ["constitutional law" perhaps, audio is unclear]
[This is where the disputed exchange quoted above falls in, and this audio extends long enough to show derisive laugher after Yoo's comment that 'it depends on why the president thinks he needs to do that', but stops there.]

Definitely provides front-end context. I hope to convince Watts to post a few minutes beginning with the disputed exchange and going from there. In the e-mail, he said, "There is nervous laughter, boos and jeers after John Yoo's comments - and some disbelief. After the rucus dies down Jerome McDonald from World Council on Foreign Affairs, the moderator, goes to ask a question of a group of protestors sitting just left of the stage in Guantanamo jump suits." This makes it seem as though that particular exchange ends there. Still working on it.

Later still: Doug Cassel writes in response to the original exchange quoted above:

That is my recollection of an exchange during my debate with Yoo before the Chicago Council on Foreign Relations on Dec. 1, 2005. The Council made no tape or transcript. In fairness, Yoo also said that the US government does not and should not do that; he was making only a point of law (with which I disagree).

I think the issue here isn't what Yoo thinks should be done or what Yoo thinks is being done, but rather that Yoo's framework laid a foundation that has been expanded upon by an administration that believes in the total supremacy of the Executive branch of government. I'm awaiting comment from John Yoo now.

Posted by shamanic at January 14, 2006 12:18 PM | TrackBack