Scott Horton on John Yoo Once Again

Balkinization: The tribunal's view was that von Ammon and his colleagues should have properly advised on the limitations of international law. They did not do so. If we had to put von Ammon's mistakes on legal interpretation side-by-side with Yoo's, the comparison would be very much in von Ammon's favor, I think. That's largely a result of the fact that many of the violations which the Tribunal noted really became crystalized after World War II, and at the time of the Justice Case were fairer game for argument than today....

The bigger issues here are the JCE issues, which go to the notion introduced in the charge of "foreseeable" damage, among other things.

Philippe Sands's key finding -- if there is just one -- is that the bottom up narrative that the Administration puts forward surrounding the introduction of torture techniques is a sham. He follows the story to its roots, and he finds that it is, to the contrary, a "top down" story, with a number of lawyers engaging in an elaborate scheme to cover it up with the paper trail that starts with the Diane Beaver memoranda. Key to this unraveling is the story of the senior lawyers' trip to GTMO at the launch of the process, a trip about which Haynes repeatedly lied.... [A] prosecutor... [could] make the case that this shows recognition and belief that the scheme was essentially criminal (or presented substantial likelihood of criminal culpability) and thus needed to be concealed. In fact the key participants had been warned repeatedly at that point that regardless of their curious views about the laws of war, a large majority in the legal community would take a different perspective and could well view their conduct as criminal. This advice was clearly propelling their conduct....

[T]he German military lawyers had taken almost exactly the same stance that the American JAGs took on the Bush Administration's detainee initiatives. They argued stringently for firm application of Geneva and Hague standards and said that this was driven by enlightened self-interest, i.e., to protect German soldiers. These views were overruled on the grounds that this was a "new kind of warfare" in which the principal foe... was terrorist in nature.

Several of the senior JAGs have now described to me their direct dealings with Yoo in which they stressed criminal liability as the major concern. Yoo's response was consistently that he could "fix the problem" by getting the Criminal Division to issue get-out-of-jail cards for all concerned. And this puts Yoo a step closer to the implementation of a plan and a step away from the issuance of a detached opinion...