By Hector Villagra, Executive Director, ACLU/SC On Wednesday, June 5th, the ACLU of Southern California’s Ahilan Arulanantham took part in a public discussion concerning the Obama Administration’s targeted killing program. Speaking alongside Mr. Arulanantham was John Yoo, formerly with the Department of Justice’s Office of Legal Counsel during the Bush Administration. Although we disagree with much of what Yoo said, his presence made for an engaging discussion, as those permitted to attend no doubt found. But there is an important lesson underlying the fact that he was there at all, and we should pause to consider it.
Yoo has been investigated for war crimes and his role in the institutionalization of torture and other violations of domestic and international law. In particular, Yoo was the defendant in Padilla v. Yoo, a lawsuit filed by an American citizen detained without trial and tortured by military officials acting under the legal authority provided by Yoo’s memos. Unfortunately, a federal appellate court recently ruled that Yoo was legally immune from being sued by the many victims of the policies he sanctioned.
Despite the passage of time, the extremity of the position for which Yoo argued and the harm he caused cannot be forgotten. Yoo argued that the military had unfettered freedom to imprison American citizens found on United States soil without charge or explanation, and to torture these men and women indefinitely, even for years, while denying them the right to speak with anyone outside their interrogators. Interrogators sprayed their captives with noxious fumes, physically forced them into “stress” positions for hours on end, stripped them naked, threatened them with murder, forcibly administered anti-psychotic drugs, and conducted other unspeakable acts – all based on Yoo’s legal guidance.
Yoo’s legal reasoning has since been revoked and repudiated by executive order of President Obama, in recognition of both its shoddy legal analysis and its terrible consequences for “safe, lawful and humane treatment.” The Office of Professional Responsibility overseeing Yoo’s department found that he was guilty of “intentional professional misconduct when he violated his duty to render … objective, candid legal advice.” That office’s decision to report Yoo to the bar for discipline was quashed by a senior Justice Department official, who nonetheless acknowledged that Yoo had used “poor judgment” and his tenure represented “an unfortunate chapter in the history of the Office.”
Yet Yoo remains unpunished for his actions – in fact the Obama Administration never even tried to prosecute him. And, since the Padilla decision, the federal courts appear to have decided that people like Yoo cannot be held accountable even by their victims through civil lawsuits.
For that reason, while we acknowledge the right of anyone – including those who should be (and are) imprisoned for the most serious crimes – to speak freely, and while we will always stand ready to defend the free speech rights of even those with whom we most vehemently disagree, we must also acknowledge that the Obama Administration has failed by choosing not to prosecute Yoo, as well as others who sanctioned torture when they held positions of such great power. As publically stated by deans and professors of several law schools, including UC Irvine and Stanford University, the failure to hold Yoo accountable undermines “the integrity of the legal profession and the sanctity of the rule of law.”
That John Yoo has no reason to fear the prospect of being held responsible for his actions sends a most disturbing message: the courts and the executive branch will shield those who commit heinous abuses of our Constitution. That is a truly terrifying precedent.