Birth of a shadow doctrine: How a small group of lawyers launched a war against international law

[DonViejo]

From torture to drone strikes, international law is under attack in the U.S. Here's how it all began

JENS DAVID OHLIN

Excerpted from “The Assault on International Law.”

When the hijacked airplanes hit the World Trade Towers on 9/11, John Yoo was working in his Justice Department office in Washington, D.C. At the time, he was assigned to one of the most crucial legal departments in the federal government, the Office of Legal Counsel (OLC). Although he was an important lawyer in the administration of President Bush, Yoo himself was not well known outside of a close circle of Washington bureaucrats and policy wonks. He wasn’t famous. But all of that would change very quickly.

Yoo had taken a leave of absence from Berkeley Law School to work for the Bush administration. His academic work had focused on constitutional law and foreign affairs, and he had earned a reputation for being a strong supporter of presidential war powers. According to Yoo, the president of the United States has virtually unlimited power as the constitutionally appointed commander in chief of the armed forces. Although Congress can play some role in times of war, Yoo had insisted in a series of law review articles that this role was secondary at best. In times of crisis, presidential power always trumps congressional deliberation.

Before 9/11, Yoo’s views were mostly of academic interest. His writings had attracted some skepticism among his law school colleagues, but prior to 9/11, his views were hardly part of the wider political discourse. All of that changed dramatically after the planes hit.

1. The Office of Legal Counsel

Within days, the White House was asking the OLC to answer a whole set of crucial legal questions: Could the president order the bombing of al-Qaeda training camps in Afghanistan? What type of congressional authorization was required before the president could use military force? Could the president use preemptive force to stop future terrorist attacks? Could the United States attack not just terrorist organizations but also the foreign states that harbored them? After the OLC answered yes to each of these questions, and President Bush ordered military attacks against al-Qaeda and the Taliban, a second round of no-less important questions were raised about the conduct of the war. Could terrorists be detained by the military, and did the Geneva Conventions apply to them? Could interrogators torture detainees to extract life-saving information about future terrorist attacks?

more
http://www.salon.com/2015/02/07/birth_of_a_shadow_doctrine_how_a_small_group_of_lawyers_launched_a_war_against_international_law/

[merrily]

1. Sorry, we've already looked forward.

One of the things we cited to justify looking forward was that people relied on legal opinions. Never mind that those opinions were given after the fact and that Bybee seems to have earned himself a seat on the bench of the US Court of Appeals in exchange for some of those opinions. And never mind that we didn't think that the actions of the small group of lawyers involved even warranted a letter to their respective bars.

Not to mention, was Bush President before 2000 or after 2009?:

http://www.amnestyusa.org/our-work/issues/security-and-human-rights/illegal-and-indefinite-detention/extraordinary-rendition-disappearances-and-secret-det

https://www.amnesty.org/en/library/asset/AMR51/024/2009/en/ef7a6414-8904-44c8-b668-9a21c2b54f14/amr510242009en.html

http://blog.amnestyusa.org/us/bagrams-new-black-hole/

http://my.firedoglake.com/valtin/tag/barack-obama/page/2/

http://blog.amnestyusa.org/africa/obamas-alleged-link-to-secret-prisons-and-extraordinary-rendition/

And then, there's perhaps the ultimate the Hobson's Choice: if you were a suspected terrorist--and sometimes are suspicions have been proven wrong--would you rather be tortured or droned to death? (And that doesn't even get to the issue of bystanders.)

http://www.newyorker.com/magazine/2014/11/24/unblinking-stare

And then, there is the issue of what various Democrats and Republicans on Congressional Committees knew and when they knew it.

Can o' worms.

[BlueMTexpat]

2. These people have done incalculable damage, not only to US

standing as a nation believing in the rule of law, but to hundreds of thousands of actual human beings around the globe.

They have shamed this nation and have never been held to account, which is doubly our shame. If there is any justice anywhere where they will be held to account, it will not be in this world, I'm afraid.