The Grand Duchy of Saxe-Weimar-Eisenach
Friedrich Hayek as Ideologue

Michael Rosten's John Yoo Report

Michael Rosten reports on John Yoo. Can anybody tell me how somebody who claims to be unable to use the standard tools of legal research was tenured at Berkeley's Boalt Hall? Isn't an ability to use Westlaw a core competence of a law professor?

Looking for Someone to Lie to Me: Yoo can't be serious: Professor John Yoo has received ample opportunities to defend himself in various media outlets. For a man whose job it has been to defend the indefensible, he sure is good at finding new and innovative ways to stuff the turkey. Here's a recent example quoted in the Washington Post:

Yoo thinks his critics should understand that he offered legal advice, while others made policy. "I think people don't understand how difficult was the work we did, how difficult the questions, how recent the 9/11 attacks were," he said. "There was no book at the time you could open and say, 'under American law, this is what torture means.'"

Um, sorry Professor Yoo. Either you didn't want to find out "under American law...what torture means," or you just didn't do your job and go looking for the book that says what torture was under American law hard enough. It's easy enough to find - just go to, and look for the 1999 US report to the Committee Against Torture on America's work to implement the Convention Against Torture. The report's first section starts out with reference to the fact that "Within the federal government, the Civil Rights Division of the Department of Justice is the primary institution responsible for enforcing federal civil rights statutes... Examples of recent activity relevant to the prohibition of torture and cruel, inhuman or degrading treatment under the Torture Convention include" 18 particular cases, all of which had to define whether or not acts used against detainees or prisoners within the United States were acts that in severity amounted to torture.

But that's only part one. Part two speaks more to how the US had worked specifically to implement Article 1 of the CAT, which explicity defines torture. A few examples of what actually constitutes torture are outlined:

The intentional infliction of "mental" pain and suffering is appropriately included in the definition of "torture" to reflect the increasing and deplorable use by States of various psychological forms of torture and ill-treatment such as mock executions, sensory deprivations, use of drugs, and confinement to mental hospitals.... in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from: (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality.

The report goes on to note that "Perhaps the strongest and clearest protection against torture [in US law] is afforded by the Eighth Amendment to the U.S. Constitution, which prohibits 'cruel and unusual punishments.'" It then goes on to refer to no fewer than 16 federal cases in which the definition of "cruel and unusual punishment" was evaluated by American courts.

The DOJ memo that superseded the memo authored by Yoo, in which he could not find the book that defined torture according to American law, explained that there are also quite a few cases under the Torture Victims Protection Act which defined what was and was not torture. Why exactly did it take two more years for the Justice Department to complete the kind of trailblazing legal research into TVPA jurisprudence that any second-year law student with a Westlaw password could probably wrap up in a few weeks time?

Like victims of waterboarding, Yoo's suggestion that it was hard to figure out what is and is not torture just doesn't hold water. Any simple review of the key materials that established America's commitment to the Convention Against Torture would show that there are plenty of acts that do not amount to organ failure that constitute torture. The only reason you can't find reference to the 1999 CAT Report in the Yoo memo is that it would have been inconvenient. They were trying to build the case for committing torture and inhumane acts, and their memo sought to create a legal defense for those who might commit these acts. Boalt Hall really should ask how much longer it benefits from having a war criminal on its faculty.