The Trial of John Yoo

John Yoo

I have just returned from a debate on presidential power at Chapman University Law School.

In retrospect, the event should more properly have been called “The Trial of John Yoo.”

And strikingly, it was Yoo who cast himself in the role of defendant.

The debate was titled “Presidential Power and Success in Times of Crisis,” and the debaters included John Eastman, Dean of Chapman’s law school and one of the nation’s smartest (and therefore most dangerous) conservative legal scholars, as well as progressive Chapman law professors Katherine Darmer and Larry Rosenthal.

The first speaker and featured star attraction was John Yoo, currently Professor of Law at the University of California at Berkeley and Fletcher Jones Distinguished Visiting Professor of Law at Chapman, and the former Deputy Assistant Attorney General in the Office of Legal Counsel under President George W. Bush who co-authored the now-infamous memos justifying waterboarding and other forms of torture.

For those of us expecting a high power constitutional firefight over Bush era torture and presidential power, the debate was a letdown.

In fact, only one side – Darmer and Rosenthal – really addressed the scope of presidential power in the war on terror or the legal and ethical issues involved in the Bush administration’s torture program.

The other side – Yoo and Eastman – focused instead on the legal and ethical charges – only vaguely alluded to in the debate, but prominent in the media – against John Yoo himself.

Yoo’s self-defense consisted of unsubstantiated claims that torture (or what he called “enhanced interrogation”) was necessary to prevent a repeat of a 9-11 terrorist attack against the U.S., and strained analogies to prior unilateral presidential actions during wartime (such as Lincoln’s attempt to suspend habeas corpus during the civil war).

Most significantly, Yoo argued that President Bush — and, by clear implication, Yoo himself — should not be legally or morally judged in Obama era hindsight.  Rather, Yoo claimed, the legal and moral judgment of the Bush administration’s policy on torture must take into consideration the legitimate fear of terrorism that gripped the nation immediately following the 9-11 attacks.

Professor Rosenthal aptly called this argument the “I lost my head” defense.

For now, I will leave to others the discussion of Bush era torture, as well as the extent of John Yoo’s personal moral and legal culpability.

What I want to note is that John Yoo knows that he is already on trial – not just in Spain, but here in the United States – and he is already attempting to put on his defense.

And if his performance at Chapman is an indication of his skill as his own defense attorney – and I think that it is – John Yoo is in serious trouble.

Yoo was meandering, inarticulate, and alternately simplistic and condescending.  He was no match for Darmer and Rosenthal – both former federal prosecutors and both clearly far smarter and more savvy than John Yoo.

I came away from the debate feeling that Yoo is a rather pathetic figure, intellectually out-classed by the others on the panel.

Yoo’s rise in the legal world of the Bush administration was obviously more a product of his political beliefs and ultra-conservative connections – he clerked for Supreme Court Justice Clarence Thomas and Thomas’ friend and mentor Judge Laurence Silberman – than of his legal skill.

Yoo was probably not really even the primary author of the torture memos – that dubious distinction most likely belongs to his boss at the Office of Legal Counsel, former assistant attorney general and now federal appellate judge Jay Bybee.

And if John Eastman’s tepid and uncharacteristically dim performance as co-counsel for Yoo’s defense is an indication, Yoo may just end up as the designated fall guy for public outrage over Bush’s torture program.

At Chapman today, one sensed that John Yoo knew that he was the going to take the fall and that there was little, if anything, that he could do about it.

But Baby, Obama Wants Me to Drive a Fiat X1/9

Of all the cars that I’ve owned, my favorite was a yellow and black 1975 Fiat X1/9.

Designed by Nuccio Bertone, the X1/9 was a two-seater, hardtop convertible with a mid 1489 cc. engine and a five-speed transmission.

It was beautifully styled and it handled like a dream.

It was tremendous fun driving this sleek little skateboard on the freeway.

The only real problem was the carburetor, which kept failing when it idled.

And you couldn’t get parts, except by scavenging the junkyards.

And the mechanics here in Southern California would just laugh if you asked them to fix it.

I learned to keep it going (most of the time) using a combination of toothpicks and rubber bands.

(Really).

Then my son was born.

My wife said:

The Fiat X1/9 is not a car for a parent.

There’s no room for a baby seat.

There’s no room for anything.

A sleek yellow skateboard racing down the freeway isn’t a very safe place for a child.

There are no air bags.

There isn’t much of anything between the driver and the road.

And Fiat’s reputation for unreliability doesn’t inspire the confidence that parents require.

You need a car that doesn’t require a toolkit of rubber bands and toothpicks.

So my Fiat X1/9 was abandoned for a safer, more sensible car, one that was appropriate for a “Baby On Board” sign.

My current car is a Chrysler PT Cruiser Turbo convertible.  All in all, a reliable but fun car with plenty of room for the kid, the dog, and the scout troop equipment.

But it isn’t half as much fun as the Fiat X1/9.

Over time, giving up the X1/9 came to symbolize my belated transition into adulthood and responsibility.

But now President Obama insists that my Chrysler must become a Fiat.

My son no longer needs to sit in a rear seat.

Is it time to talk to the wife about getting an X1/9 again?

Not just for me, of course.

But as a show of support for our president.

Staging the Genocide in Darfur

I am the founder and Artistic Director of Moving Target Theatre, which partners with humanitarian and progressive organizations to bring theatre that engages the social issues of our times directly to the community.

We have no space of our own.

Our “theatre” consists of community centers, churches, mosques, synagogues, union halls and schools – the places where people gather to discuss and organize action around the issues that affect their lives.

Our current production — in partnership with Orange County for Darfur — is the play In Darfur by Winter Miller.

In Darfur is a contemporary examination of the unfolding tragedy of Darfur. An idealistic New York Times reporter risks everything to force that paper to highlight the Darfur story. But the telling the truth about Darfur increases the danger for everyone involved, leaving the audience on the edge of their seats and on the edge of the abyss.

The next performance of In Darfur is this Saturday, March 21, at 7:00 pm at Christ Our Redeemer AME Church (in partnership with University Synagogue), 46 Maxwell St., Irvine, CA 92618.

The performance is free.

To reserve tickets, for more information, or to schedule a performance, call (949) 300-4100 or go to the website of Orange County for Darfur.

We hope to see you there.

UPDATE:

The performances of In Darfur at COR AME Church and St. Anselm’s Church were enormously successful.  Upcoming performances include the Tapestry Unitarian Universalist Church in Mission Viejo and Chapman University in Orange, California.  Please check  Orange County for Darfur or the facebook page of Moving Target Theatre for specific times, dates, and venues, or to inquire about bringing the production to your community.

Ruslan Janumyan and Joseph Byrd in Moving Target Theatre's "In Darfur."

Pat Payne and Lindsay Blackwell in Moving Target Theatre's "In Darfur."

Pressure Builds in Israel to End Gaza War

Haartez, Israel’s leading center-left mass circulation newspaper and its oldest daily, has published an editorial today calling for an immediate end to Israel’s military operation in Gaza.

The editorial, entitled “Stop the Operation,” argues that Israel has now achieved whatever security goals it is possible to attain through military means, and that the suffering the operation is causing to the people of Gaza is unconscionable.

“This is the time to put the operation aside. It has crushed the military organization of Hamas, killed senior figures of the group, but also killed hundreds of civilians and injured thousands. The basic infrastructure in the Gaza Strip has also suffered a fatal blow. The UNRWA hospital and food storage facilities that were hit yesterday now join a list of population centers and power plant, which have already been struck in the operation.”

“The military force that Israel has applied in the past three weeks does not permit it to ignore the terrible suffering experienced by the residents of Gaza. The ‘humanitarian corridors’ are insufficient. The three or four ‘mercy hours’ leave little chance of delivering convoys of supplies or distributing needed items to the population that is now under direct Israeli occupation.”

The editorial also calls for an end to Israel’s blockade of Gaza and its imposition of economic sanctions:

“There will be no harm to the war effort or to Israel’s security if it opens the border crossings for the continuous flow of supplies and medicines. In any case, the policy of economic sanctions Israel imposed contributed to nothing and did not avoid the need to go to war. Even the concern that the opening of the crossings to the transfer of goods would strengthen Hamas’ ability to hold out in the war is not valid. Hamas is not fighting Israel for bread, and in any case the collapse of Hamas is no longer a declared aim of the war.”

Haartez argues that Israel cannot justify its military operation from either a moral or a pragmatic perspective.

From a moral perspective, Haaretz contends, so long as there is no sovereign Palestinian state, Israel is responsible for the 1.5 million people of Gaza.

From a pragmatic perspective, Haaretz points out, first, that the Gaza operation will generate even greater Palestinian hatred and resistance toward Israel (“[D]isease, poverty and unemployment are the fertilizer in the greenhouse that grows the desperation and the radicalism that brought Hamas to power. Israel is the one that will reap the hatred and fear that Operation Cast Lead will sow in the hearts of the children of Gaza. These are the neighbors with whom Israel will have to reach a peace agreement and live next to for generations to come.”). Second, Haaretz observes that “a better diplomatic formula than those proposed by Cairo and Washington will not be offered to Israel.”

Haaretz is not alone within the Israeli mainstream in calling for an end to Israel’s Gaza campaign.  The Israeli General Staff and the leaders of its security forces have told Israel’s politicians that “Israel achieved several days ago all that it possibly could in Gaza.”  There are also reports that “The very success of the campaign has led to a growing rift in Israel’s leadership. Defense Minister Barak, the commander of the IDF General Gabi Ashkenazi, Military Intelligence, and others associated with the defense establishment believe that Israel should try to reach an immediate cease-fire with Hamas, rather than expand its offensive against it in Gaza.”

In the face of the continued tacit acceptance, if not outright support, of Israel’s Gaza campaign from the world’s governments, including those of the Arab states, it is likely (and ironic) that the most effective pressure on Israel to end its devastation of Gaza is now coming from Israel itself.

Israel’s Stunning Geopolitical Victory in Gaza

Eighteen days and a thousand Palestinian deaths into its massive Gaza campaign, Israel has yet to suffer a single significant geopolitical casualty.

In fact, despite the international outcry in the press and in the streets against its military offensive, Israel has scored a stunning geopolitical victory in Gaza.

The reaction of world governments (as distinct from world media and public opinion) has been surprisingly supportive (albeit mostly tacitly) of Israel and its aim of destroying Hamas, even at the cost of hundreds (or more) of innocent Palestinian lives.

To no one’s surprise, the United States Congress, the Bush administration, and the incoming Obama administration have all gone on the record in support of Israel’s war in Gaza and continue to green light its escalation.

More surprising is the position of the European states and Russia, which have endorsed a United Nations Security Council cease-fire resolution and a joint French-Egyptian mediation effort whose terms would meet Israel’s goal of disarming Hamas and crippling its ability to rule Gaza.

Venezuela, the one country that responded to Israel’s actions in Gaza by expelling the Israeli ambassador, has now told Israel that it did not intend to break off diplomatic relations with Israel and asked that Israel reopen its embassy.

Most surprising is the position of the majority of the Arab states, which have also endorsed the U.N. cease-fire resolution and the French-Egyptian mediation effort.

Even Iran and Syria – the two countries that have been Israel’s fiercest opponents and the strongest and most crucial supporters of Hamas – have toned down their rhetoric and taken actions that at least tacitly accept Israel’s Gaza campaign.

Iran has publicly announced that it will not permit suicide bombers to attack Israeli targets from Iran and less publicly, but more significantly, told Hezbollah to stop its missile attacks on Israel from Lebanon.  Indeed, Lebanon’s parliament majority leader Saad Hariri publicly stated that Saeed Jalili, the secretary of Iran’s Supreme National Security Council, told him that Hezbollah would not attack Israel from Lebanon in response to the Israeli attack on Gaza.

Both Syria and Israel downplayed an incident involving an attack last week on Israeli troops near the Syrian border and agreed that the Syrian military was not involved.

Khaled Abu Toameh quotes a Hamas representative in Gaza City saying  ”We feel that our brothers in Teheran and Damascus have betrayed us, as have the rest of the Arab and Islamic governments.”

What this all means is that Israel is scoring a stunning geopolitical triumph against Hamas, which appears to have been abandoned and left to its fate at the hands of the Israeli military by every nation in the world, including its purported allies.

The short term consequence of this Israeli geopolitical victory will be the continued escalation of Israel’s military campaign against Hamas (and more Palestinian deaths), limited only by Israel’s own strategic concerns.

The long term consequences — for Hamas, for Gaza, for the Palestinians, for the Arab regimes, for Israel, and for peace in the region – are far less clear.

The Israeli Offensive in Gaza: For What Goals And At What Cost?

Many Americans think that there is a single Israeli or Zionist position on how to deal with Hamas and the continuing rocket attacks from Gaza on Israeli civilians.  Most Americans also assume that this position is that of the Israeli government.

This belief could not be further from the truth.

 

In fact, within Israel, and among dedicated Zionists, there is a wide range of opinion, especially concerning the use of military force, and specifically regarding the current Israeli military offensive in Gaza.

One of the more reasonable voices among Israeli Zionists is that of Haaretz, a center-left newspaper that is published in both Hebrew and English.

Their editorial on the Israeli offensive in Gaza, which I have reprinted below, is well worth reading.

Note that Haaretz does not condemn the use of force per se, but insists that the use of military force must be conditioned on whether such force is likely, or even possible, to lead to the supposed objectives of the mission.

Like the United States in Vietnam, or now in Iraq, Israel has often used the blunt instrument of its superior firepower for objectives that cannot be accomplished by military means.

What this means is that, once again, hundreds, if not thousands, of lives, both Israeli and Palestinian, are lost, while accomplishing nothing that will lead to either stabilization or peace. 

Here is the Haaretz editorial:

Define the Objectives in Gaza

The government launched a military campaign in Gaza yesterday. In the first wave of aerial assaults, more than 200 Palestinians were killed and Hamas’ retaliatory fire killed one Israeli civilian from Netivot. Hundreds were wounded on the Palestinian side, as were dozens of Israelis. “This is the time for battle,” the defense minister said in highlighting the new reality that has taken hold in recent weeks in Sderot, Ashkelon, and the western Negev.

It is possible to understand the logic of the Israel Defense Forces response. It did not need the inflammatory rhetoric of the news media, which often acted like cheerleaders competing with one another. Nor did it need the winds of the election, which propels the sails of headline-hungry politicians. The residents of the western Negev, who have lived in fear on a daily basis, petrified elementary school children, and the constant violation of a soverign state’s territory – these are what provide legitimacy for the operation.

But understanding is no substitute for wisdom, and the inherent desire for retribution does not necessarily have to blind us to the view from the day after. The expression “time for combat” still does not elucidate the goals of the assault. Does Israel seek to “just” send Hamas a violent, horrifying message? Is the intention to destroy the organization’s military and civilian infrastructure? Perhaps the goal is far-reaching to the point of removing Hamas from power in Gaza and transferring rule to the Palestinian Authority, headed by Mahmoud Abbas? How does Israel intend to realize these goals? The aerial assault on its own, as one may recall from the Lebanon War, cannot suffice. Does the IDF plan on deploying thousands of soldiers in the streets of Gaza? And what will the number of casualties be at this stage?  
 
A public that has learned from experience cannot assume once again that the government knows what it is doing, particularly since its leaders have struggled in formulating a consistent stance in recent weeks. That same public knows well, and not only from the Lebanon experience, that working toward long-term goals that would completely change the landscape in the region, like toppling Hamas from power in Gaza, is liable to turn out to be a wild fantasy. It would be best to make do with immediate goals and with measured, calculated accomplishments that could restore quiet, particularly the cease-fire Israel enjoyed for five months, which enabled Gaza residents to lead reasonable lives.

Israel’s violation of the lull in November expedited the deterioration that gave birth to the war of yesterday. But even if this continues for many days and even weeks, it will end in an agreement, or at least an understanding similar to that reached last June. Hamas’ terms for calm have not changed: a cessation of the attacks on Gaza and the organization’s activities in the West Bank, a reopening of the Gaza border crossings, and a release of Palestinian prisoners. Israel’s demands will also remain as they were: a halt to rocket attacks on its towns. It would behoove both sides to enlist every possible mediator – from Egypt to Qatar to the United States and Europe – to implement those terms. One may assume that the military message Israel sent was fully understood. It would be best not to turn it into a disaster that would preclude a future agreement.

(Bring Them) Home for Christmas

One of the most popular Christmas songs is I’ll Be Home for Christmas, but few recall that the song is about war and the sadness of soldiers away from home.

Recorded in 1943 by Bing Crosby, during the darkest days of the Second World War, the song became the most popular Christmas song for American soldiers, sailors, and marines serving overseas. 

This Christmas, whenever I’ve heard the lyrics:

“I’ll be home for Christmas.
You can count on me.
Please have snow and mistletoe
And presents under the tree.
Christmas Eve will find me
Where the love-light gleams.
I’ll be home for Christmas
If only in my dreams”

I think about the American soldiers, sailors, and marines now serving in the war zones of Iraq and Afghanistan, and about their families missing them on Christmas morning.

I also think about the more than 4,000 American service men and women who won’t ever be coming home for Christmas.

I’m sure, like the rest of us, President-elect Obama has heard I’ll Be Home for Christmas countless times this season.

I hope he hears what I hear.

Merry Christmas (Peace on Earth).

Hillary Clinton Isn’t a Foreign Policy Issue — What We Should Really Care About

Does it matter whether Hillary Clinton is Barack Obama’s secretary of state?

Who is the secretary of state is far less important than the question of Obama’s foreign policy — and I’m not sure that I know what that is, even in general, at this point.

As far I as I can figure, Obama isn’t very far from Bush on most foreign policy issues (without, hopefully, the stupidity) and that concerns me far more than whether Hillary Clinton should be secretary of state.

During the course of the campaign, as the economy became the focus of debate, questions about foreign policy receded.  Even so, Obama seemed to me to move closer to Bush on a wide range of foreign policy issues, from the war in Afghanistan to support for the territorial claims of the current regime in Georgia. 

Overall, Obama maintained a fuzzy “feel good” foreign policy stand with vague bromides such as “secure loose nuclear materials from terrorists” (who is in favor of loose nukes?), “direct diplomacy without preconditions to end the threat from Iran” (who doesn’t want to end the threat from Iran?) “rebuild our alliances” (anyone against that?) and “renew American diplomacy” (okay, but how?).

Aside from the still unresolved question of what Obama will do to end the war in Iraq, these questions concern me:

Will Obama continue the Bush policy of deploying missiles in Eastern Europe despite the threat such missiles pose to the Russians?

Will Obama put teeth in the U.S. opposition to Israeli settlements in Palestinian territory?

How will Obama work with Mexico and other countries to reduce illegal immigration and reduce drug traffic into the U.S.?

How will Obama seek to change NAFTA and CAFTA?

What countries should be admitted in NATO?

What should the U.S. or the U.N. do about the ongoing genocide in Darfur?

What should the U.S. do about the many other disasters now taking place in Africa (Somalia, Congo, Zimbabwe)?

The list, of course, could (and should) be expanded.

The fact is that we don’t know the answers to these questions.

When we’re talking about Obama’s foreign policy, these are the questions we should be discussing, not whether Hillary Clinton (or anyone else) should get the corner office in the state department.

The Biden Doctrine: Joe Biden’s Call for U.S. Military Force in Darfur Offers Hope to the Victims of Genocide

Photograph by Brian Steidle

Anyone who has seen The Devil Came on Horseback, the heart-breaking documentary film about the genocide in Darfur, will recall ex-marine officer turned unarmed observer Brian Steidle’s comment that “If these photos were seen”  — that is, the photos that Steidle himself took of the atrocities committed against civilians, including women, children, and babies, by Sudanese forces and government-backed Arab militias – “there would be troops here in no time.”

What Steidle meant was that if the American people could see what was happening in Darfur, they would not allow the Sudanese slaughter of the innocents to continue, but would demand that America use its military might to force an end to the genocide that has already killed more than 300,000 people and displaced more than two million others into refugee camps where they are subjected to constant government attacks, rape, malnutrition, starvation, and disease.

Steidle now readily acknowledges that his belief in America’s willingness to put boots on the ground to protect Black Africans in Darfur was naïve:  “I honestly thought, as I wrote in an email home, that if the people of America could see what I’ve seen, there’d be troops here in one week…. Man, I am so naive. Because that’s not true at all. They’ve seen it now. And we’ve still done nothing.”

As Richard Just recently noted in a brilliant and disturbing essay in The New Republic on the ineffectual American response to the genocide in Darfur, “All the information – the dispatches, the websites, the columns, the books, the films – have not roused anybody with the power to stop this tragedy actually to stop it.”

Faced with the reality of genocide in Darfur, Steidle, the ex-marine, wished that he could take matters into his own hands. “If we had a mandate to defend these people,” he wrote, “and if I was looking through a scope instead of looking through the lens of my camera, these [Sudanese military] vehicles would be done. These people could return to their village, and they’d be safe.”

But there still is no international or American mandate to effectively defend the people of Darfur.

In Steidle’s words, the United States and its allies have “done nothing” to prevent the continued killing of unarmed Darfuri men, women, and children.

A village burned by the Janjaweed. Photograph taken by Brian Steidle.

The reasons for our impotence and inaction, according to Just, are many: “True, we were poorly served by a small-minded president and his bungling administration. But did liberals demand the right things of him? Did we push for what would really save the people of Darfur? Or did we get trapped by the inclinations of our worldview, and advocate for too little?”

There is at least one American political leader who is clearly on record in support of Steidle’s military approach to stopping the killing of Darfur’s innocents – Democratic vice presidential candidate Joe Biden.

At an April 11, 2007, hearing of the Senate Foreign Relations Committee, which he chairs, Biden said “I would use American force now. I think it’s not only time not to take force off the table. I think it’s time to put force on the table and use it.”

Biden argued that 2,500 U.S. troops in Darfur could “radically change the situation on the ground now.”

“Let’s stop the bleeding,” Biden said. “I think it’s a moral imperative.”

Biden’s engagement with the crisis in Darfur goes back to at least 2004, when he and Senator Feingold wrote to President Bush, urging him to take action to prevent the genocide unfolding in Sudan.  Biden visited the Oure Cassoni refugee camp on the Chad-Sudan border (after being denied a visa to go into Darfur) in March 2005 and met with refugees and African Union commanders. On his return, Biden called for NATO to send combat troops to Darfur.  In February 2006, Biden pressed his Senate colleagues to support NATO enforcement of a Darfur no fly zone to prevent air attacks by the Sudanese government against Darfuri civilians.

More recently, on April 23, 2008, Biden told the Foreign Relations Committee “Genocide is happening on our watch. What are we going to do about it? What we’re doing now is not working.”

Further chilling evidence that “what we’re doing now is not working” came this week with the news that Sudanese troops opened fire inside a Darfur refugee camp, killing at least 27 people.  Sudanese government troops in over 100 trucks with mounted machine guns surrounded the sprawling Kalma camp, home to more than 90,000 people who have been forced to abandon their homes and flee from Sudanese army and Arab militia attacks on their villages, and opened fire.

You can see a short film by Doctors Without Borders showing the atrocious conditions in the Kalma camp here.

In response to this most recent outrage, the Bush administration issued an appallingly tepid statement saying that the United States was “concerned by indiscriminate weapons fire by Sudanese government forces on the Kalma internally displaced persons camp” and calling on the Sudan government (which planned and committed the attack) to “thoroughly investigate this incident and ensure that such actions are not repeated.”

In his TNR piece, Richard Just reports the hands-off policy toward Darfur of “[current World Bank president and then United States Deputy Secretary of State] Robert Zoellick, who by that time had become Bush’s point man on Darfur: ‘It’s a tribal war. And frankly I don’t think foreign forces want to get in the middle of a tribal war of Sudanese.’ … If Omar Bashir [the president of Sudan] knew of Zoellick’s comment, then he would also have known that he would win in Darfur. And he has won.”

Despite the Bush adminsitration’s saber-rattling bluster aimed at other parts of the globe, it has been meek to the point of complicity in regard to the genocide in Darfur.

That meekness toward the regime in Khartoum is likely to change under an Obama-Biden adminsitration.

Before he was nominated for vice president, Joe Biden had vowed that he would use his Senate Foreign Relations Committee Chairmanship to hound a president Clinton or Obama into real action on Darfur.

Perhaps as a leading voice in an Obama administration, Joe Biden will lead the United States to take the military action necessary to end the “genocide that is happening on our watch.”

UPDATE

"In Darfur" by Winter Miller, produced by Moving Target Theatre

Those who live in Southern California may be interested in the play In Darfur, written by Winter Miller, presented by  Moving Target Theatre in partnership with Orange County for Darfur.

"In Darfur" by Winter Miller, produced by Moving Target Theatre

For detailed information about the play, as well as performance times, dates and locations, see the websites of Orange County for Darfur and Moving Target Theatre or call (949) 300-4100.